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Schavrien v. Reich

155 N.Y.S. 365 Court Argued October term, 1915, before BIJUR, PAGE, and SHEARN, JJ. Decision date 1915-11-03 English

Delivered by PAGE, J.

Contents

Majority

p. 365
SCHAVRIEN v. REICH.
(Supreme Court, Appellate Term, First Department.
November 3, 1915.)

Headnote

1. Attachment <S=»118—Affidavit—Contbadictxon—Effect'.
An affidavit in support of an attachment, which alleges that defendant has disposed of all her property, and that deponent is informed and believes that she is about to dispose of the remaining property belonging to her, is self-contradictory, and insufficient to warrant a finding of fraud.
LKd. Note.—For other cases, sec Attachment, Cent. Dig. §§ 307-311; Dec. Dig. <@=»113.]
<§cs>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes
p. 366
2. Courts <5^189—Municipal Court—Warrant of Attachment—Subscription by Clerk.
A warrant of attachment, which is not subscribed by the clerk of the court, as required, by Municipal Court Act (Laws 1902, c. 580) § 75, is insufficient.
[Ed. Note.—For other cases, see Courts, Cent. Dig. §§ 409, 412, 413, 429, 458; Dec. Dig. <g=»189.]
c3r=>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes
Appeal from Municipal Court, Borough of Manhattan, Seventh District.
Attachment by Charles S'chavrien against Mary Reich. From an order denying her motion to vacate the attachment, defendant appeals. Reversed, and motion to vacate granted.
Argued October term, 1915, before BIJUR, PAGE, and SHEARN, JJ.
Isador Goetz, of New York City, for appellant.
Yankauer & Davidson, of New York City (Jacob M. Cohen and Myle J. Holley, both of New,York City, of counsel), for respondent.

The affidavit of the plaintiff, read in support of attachment, alleges that the defendant—

“disposed of all her property to an auctioneer by the name of E. Shields, contrary to the Bulk Sales Act of the state of New York, without having given any notice to any of the creditors required by law, and particularly no notice to deponent. Deponent is also further informed and believes that the said Mary Reich [defendant] is about to dispose of the remaining property belonging to her with intent to defraud her creditors.”

[1, 2] This statement is self-contradictory, and insufficient to warrant a finding of fraud. Mohlman v. Landwehr, 87 App. Div. 83 , 83 N. Y. Supp. 1073 . Furthermore, the warrant of attachment was not subscribed by the clerk, as required by section 75 of the Municipal Court Act.

The order is reversed, with $10 costs to appellant, and the motion to vacate the attachment granted, with $10 costs. All concur.