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Bilder v. Ellis

123 N.Y.S. 1081 Court N.Y. Sup. Ct. English

Delivered by GERARD, J.

Contents

Majority

p. 1081
(66 Misc. Rep. 539.)
BILDER v. ELLIS.
(Supreme Court, Special Term, New York County.
March, 1910.)

Headnote

Attachment (§ 20[1] )—Simultaneous Attachment—Grounds.
There is nothing in the Code to prevent the granting of one attachment on the ground of nonresidence and another on the ground of intent to defraud creditors by transfer of property.
[Ed. Note.—For other cases, see Attachment, Cent. Dig. § 52; Dec. Dig. § 20.*]
Action by Nathan Bilder, trustee in bankruptcy of the Kornit Manufacturing Company, against Charles B. Ellis. On motion to vacate an attachment.
Denied.
See, also, 136 App. Div. 940 , 121 N. Y. Supp. 1125 .
Cohen, Creevey & Richter, for plaintiff.
John J. Vause, for defendant.

This is a motion to vacate an attachment. The question as to plaintiff’s right to recover the sum claimed by him has been passed upon by Mr. Justice Seabury. The remaining questions are: (1) Has plaintiff set forth sufficient proof to show that defendant has transferred his property with intent to defraud his creditors? (2) Has the plaintiff a right to obtain a second attachment on the ground that the defendant has transferred property with intent to defraud, having already obtained an attachment on the ground that the defendant is a nonresident?

I can find nothing in the Code to prevent the granting of one attachment on the ground of nonresidence and another on the ground of intent to defraud creditors by transfer of property. In Kibbe v. Wetmore, 31 Hun, 425 , there are dicta which would seem to approve of this practice. As to the grounds of the attachment, I think the evidence sufficiently establishes that defendant has transferred his property with intent to defraud his creditors, and the motion is therefore denied, with costs.

Motion denied, with costs.