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Deimel v. Scheveland

16 Daly (N.Y.) 34 Court N.Y.C.P. Decision date 1890-02-10 English

Delivered by Larremore, Ch. J.

Contents

Majority

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Simon Deimel et al., Appellants against David Scheveland, Respondent.
(Decided February 10th, 1890.)

Headnote

Affidavits by defendant’s bookkeeper and others that defendant had left the state and his business, without leaving any one in charge, and by plaintiff that he had frequently inquired at defendant’s place of business and was informed that defendant did not intend to return, will support an attachment as against other creditors of defendant.
A six days’ summons issued in an attachment shit in the City Court of New Tork, instead of a ten days’ summons, as required by sub division 2 of section 3165 of the Code of Civil Procedure in case of service of the sqmmojis by publication, is not an absolute nullity, and may be amended, under section 723, after publication commenced, and after thirty days from the issue of the warrant, though the summons was not issued until the order for publication was made.
On appeal from an order refusing to vacate and set aside an attachment and a judgment entered in the attachment suit, the court is not limited, in its inquiry into the validity of the proceedings, to the judgment roll, but may consider additional papers.
Appeal from an order of the General Term of the City Court of New York affirming an order of that court denying a motion to set aside an attachment and judgment.
The facts are stated in the opinion.
Philip Carpenter, for appellant.—The ground of the attachment is fraud, and fraud is never presumed, but strict proof is required. (Penal Code, § 587; Morris v. Talcott, 96 N. Y.
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100 , 107 ; Andrews v. Schwartz, 55 How. Pr. 190 ; Herman v. Doughty, 15 N. Y. Week. Dig. 94; Mappes v. Liembach, 22 N. Y. Week. Dig. 337). The truth of the charge made cannot be assumed upon mere general statements, but it must be fortified and supported by facts. (Yates v. North, 44 N. Y. 274 ; Fleitman v. Sickle, 13 N. Y. St. Rep. 399 ; Moore v. Becker, 13 N. Y. St. Rep. 567 ; Groldschmidt v. Herschorn, 13 N. Y. St. Rep. 560 ; Ellison v. Bernstein, 60 How. Pr. 145 ; Head v. Wollner, 53 Hun 616 ). Statements on information, when it is not shown that the persons from whom the affiant professes to have obtained his information were absent or that their depositions could not be procured, are insufficient to authorize an attachment. (Yates v. North, 44 N. Y. 27 -274; Steuben County Bank v. Alberger, 78 N. Y. 252 , 258 ; Matter of Stonebridge, 53 Hun 545 , 547; Wallach v. Sippilli, 65 How. Pr. 501 ; Head v. Wollner, 53 Hun 616 ).
' Section 3165, sub division 2 of the Code, provides that “ where an order directing the service of the summons • * * by publication is granted, the summons must state that the time within which the defendant must serve a copy of his answer is ten days.” It has been repeatedly held that, proceedings for the service of summons by publication being statutory, the requirements of the code in respect thereto must be strictly complied with. (Kendall v. Washburn, 14 How. Pr. 380 ). An attachment is invalidated by the failure to serve or publish the summons within thirty days after issuing the warrant. This is not a mere irregularity, but a jurisdictional omission which works the destruction of this warrant. (Blossoms v. Estes, 22 Hun 472 , and 84 N.Y. 614 , 617 ; Taylor v. Troncoso, 76 N. Y. 599 ; Mojarrieta v. Saenz, 80 N. Y. 547 ).
The order amending the summons was ineffectual and the attachment was not revived or restored thereby, as the order was made more than thirty days after the attachment was granted and after it had become invalidated pursuant to section 638 of the code. Section 723 of the code authorizes amendments “in furtherance of justice” and notin disregard
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of the “ substantial rights ” of the appellant, which the same section provides shall not be affected. ( Weeks v. Tomes, 16 Hun 349 ; affirmed 76 N. Y. 601 ). The case of Gibbon v. Freel does not apply, to the present case. In that case the motion was made by the defendant. He submitted himself to the jurisdiction of the court, and the amendment ordered did not divest him of any rights and he was in no way injured thereby.
Simson Wolf, for respondent.—The insertion of six.days instead of ten in the summons did not make it void. (Laws 1875, c. 546; § 3165; subd. 2; Clapp v. Graves, 26 N. Y. 418 ). The summons was amendable. (Code Civ. Pro. § 723; McAdam’s Appendix to Marine Ct. Practice, 4; Gibbon v. Freel, 93 N. Y. 93 ).

This is an application made by a stranger to the above entitled action, who is also a judgment creditor of defendant, to have the attachment granted to plaintiff herein vacated and set aside, in aid of said outsider’s execution upon his judgment. It is argued in the first place that the affidavits upon which the attachment was granted were defective, in that they did not allege sufficient facts to raise an overwhelming suspicion of fraud on defendant’s part. I am of opinion that there was enough in the papers to authorize the warrant. Plaintiff alleged that he went to defendant’s regular place of business several times to inquire for him, and was there informed by defendant’s bookkeeper that defendant had left the state, taking with him all the money he could raise, and that he did not intend to* return. This was corroborated by an affidavit of said bookkeeper to the effect that defendant had left the City of New York and his business, and that-the same was left without any one to take charge thereof. There were other affidavits averring in a-general way that defendant had left the city and his said business. These papers were prima facie sufficient. Of course if the defendant had appeared, and explained 'his

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absence, and repudiated the statements of his bookkeeper, the warrant would have been vacated. Counsel for appellant is in effect arguing, that all the presumptions of innocence, which exist when a defendant moves to vacate an attachment on his own property, should obtain here, whenGa subsequent lienor is endeavoring to get in ahead of plaintiff. The fact is that since the granting of the attachment the propriety of it has been confirmed by defendant’s continued absence. The affidavits raised presumptions that defendant had departed from the state, and had removed property from the state with intent to defraud his creditors. The subsequent course of events has demonstrated that these presumptions were actual facts. This should not be overlooked upon the application to vacate made by an outsider, who has no stronger moral claim than plaintiff, and who is seeking only to discover some technical flaw which will overcome the advantage gained by superior diligence. All that we can consider on the present motion is whether the moving affidavits made out a prima facie case, and we have no hesitation in holding that they did.

An order was made directing the service of the summons by publication, and such service was begun within thirty days after the attachment was granted, and continued by inserting the summons in the newspapers named, once a week for four weeks. It was then discovered that such summons was a six days’ summons, and not a ten days’ summons, as required bisection 3,165 of the code, subdivision 2. Thereupon, an order was procured amending such summons by substituting ten days for six days ; and, in its amended form, publication was continued six weeks longer. It is evident that the latter four weeks of publication were surplusage on any theory. The first publication of the summons in the amended form was more than thirty days after the granting of the warrant, so that unless the publication of the six days’ summons can be •held sufficient, the attachment must fall. .The question then is whether the publication of the original summons for four, weeks, and of the amended summons- for two weeks, will satisfy the requirements of the statute. It has been held that

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a six days’ summons issued under such circumstances is not void. “ The summons was not an absolute nullity. The insertion of six days instead of ten was an irregularity merely. ... A judgment entered by default after the service of, such a summons would not have been absolutely void, but simply irregular or erroneous to be corrected by motion on appeal.” Gibbon v. Freel ( 93 N. Y. 93 ). It is to be noticed that the right to amend in that case was deduced from the general power of amendment inherent in the court. In the case at bar the authority to amend is derived from section 723. Subdivision 2 of section 3165 grants a special power of amendment in cases where the summons has been issued before the granting of the order of publication, evidently having in view actions where one or more defendants have been served personally within the jurisdiction, and it thereafter becomes necessary to serve other defendants by publication. Here the summons was not issued until the granting of the order, and this amendment was not covered by the express language of section 3165. Still, under the general phraseology of section 723, the summons was properly amendable, and it follows that plaintiff, having presented a six days’ summons to the court, was ordered to publish it. Up to the time of the order of amendment the six days’ summons was “ the summons ” in the action. It was not void,though irregular. It was a valid process of the court, susceptible of being made perfect by subsequent amendment.. Publication of it was compliance .with the order of publication, and also with section 638, which requires that service by publication of “ the summons ”■ be commenced within thirty days. After the amendment, the six days’ summons ceased to be “ the summons ” in the action, and the ten days’ summons took its place. The order of publication still standing, it was required that publication of “ the summons.” that is to say, of the original summons as amended, be continued for two weeks longer, which was done. Under this view of the matter plaintiff began service by publication of the summons within thirty days from the time of granting of
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the warrant, and such service was made complete by the continuance thereof. All of this seems to me to follow legitimately from the general proposition that a six days’summons is not void. If a six days’ summons would be sufficient for valid service without the state, subject to amendment thereof after judgment, as was held in Gibbon v. Freel (supra), certainly the publication of such an irregular summons for a portion of the six weeks should be held sufficient to sustain the attachment in the case at bar.

It may be objected that the judgment roll in this action does not contain any proof of publication of the original summons for the first four weeks, there being nothing on this subject but the affidavit of the printers as to the publication of the summons in the amended form for six weeks. The missingproof could however be made partof the judgment roll at any time by order, and upon the present determination we are not limited to the bare contents of the judgment roll. This is not an appeal from the judgment, but from an order refusing to vacate and set aside thé attachment and such judgment. We can therefore properly consider the additional papers submitted, in which the required proof is supplied.

The order of the City Court should be affirmed, with costs.

Bischoff, J., concurred.

Order affirmed, with costs.

A motion for leave to appeal to the Court of Appeals from the judgment entered upon the foregoing decision was made at the succeeding General Term, and the following opinion was rendered April 7th, 1890.

Labbemobe, Ch. J.—After a careful re-examination of the case, I have reached the conclusion that this application should be denied. It does not appear from the affidavit that any statute or decision has been overlooked in the conclusion reached. Neither does it appear that the question

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presented is a new one. On the contrary, the propositions presented by the learned counsel for the motion have been frequently passed upon, as shown by the authorities already cited.

The motion is therefore denied, without costs.

Bischoff, J., concurred.

Motion denied.

Cases cited