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Rockfall Apartments v. Posner

153 N.Y.S. 979 Court Argued June term, 1915, before GUY, BIJUR, and PAGE, JJ. Decision date 1915-06-16 English

Delivered by PAGE, J.

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p. 979
ROCKFALL APARTMENTS v. POSNER.
(Supreme Court, Appellate Term, First Department.
June 16, 1915.)

Headnote

Attachment >@=>111 — Gbounds of Attachment—Sufficiency of Allegations.
In attachment, where the action is to recover a debt, and not to foreclose upon the security, allegations that defendant is about to remove his property from the state with intent to defraud creditors are insufficient to sustain the writ, when mere conclusions, not supported by allegations of fact.
[Ed. Note.—For other cases, see Attachment, Cent. Dig. §§ 292-302; Dec. Dig. >@=>111.]
<grx?For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes-
Appeal from City Court of New York, Special Term.
Action by the Rockfall Apartments against Jacob D..Posner." From an order vacating an attachment, plaintiff appeals.
Affirmed.
Argued June term, 1915, before GUY, BIJUR, and PAGE, JJ.
p. 980
Hitchings & Burdick, of New York City (Hector M. Hitchings, of New York City, of counsel), for appellant.
House, Grossman & Vorhaus, of New York City (Charles Goldzier, of New York City, of counsel), for respondent.

If this action had been brought to foreclose the lien upon the chattels, and the moving papers alleged default after demand and that the property was iñ possession of the defendant, a warrant of attachment could have issued without the statement of the other grounds of attachment required by section 636 of the Code of Civil Procedure. . See Lien Law (Consol. Laws, c. 33) § 206; Coiro v. Baron, 158 App. Div. 591 , 143 N. Y. Supp. 853 . The action was brought to recover the debt, and not to foreclose upon the security, and the allegations as to the defendant being about to remove his property from the state with intent to defraud his creditors are entirely insufficient to sustain the warrant, being mere conclusions, and no sufficient allegations of facts upon which the conclusions are based.

Order affirmed, with $10 costs and disbursements. All concur.

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