Thames & Mersey Marine Insurance v. Dimmick — 22 N.Y.S. 1096

Majority

p. 1096

(66 Hun, 634;

mem. report without opinion.)

THAMES & MERSEY MARINE INS. CO., Limited, v. DIMMICK.

(Supreme Court, General Term, Fifth Department.

January 18, 1893.)

Headnote

1. Attachment—Motion to Set Aside—Additional Affidavits.

Where a motion to set aside an attachment is founded solely on objections to the papers on which the attachment was granted, additional affidavits in support of the attachment will not be received.

2. Same—Affidavit — Leaving State with Intent to Defraud Creditors.

An attachment recited that it was issued on the ground that defendant, “a resident of this state, had departed therefrom with intent to defraud his creditors.’’ Affidavits tiled in support of the attachment showed that defendant had been convicted on a criminal charge; that the conviction was reversed by the general term, and afterwards the order of the general term was reversed by the court of appeals) and the conviction was affirmed; that, about 1 o’clock on the day of the decision by the court of appeals, defendant went to the office of his counsel, where he remained three or four minutes, and whence he went directly to Canada. Held, that such affidavits did not show that defendant had left the state with intent to defraud his creditors, but rather that he had heard of the decision against him, and had fled to escape punishment.

3. Same—Motion to Vacate.

Under Code Civil Proc. §§ 682, 683, providing that a motion to vacate an attachment “may be founded only upon the papers upon which the warrant was granted,” or “upon proof by affidavit on the part of the defendant,” an attachment will not be vacated because of an erroneous recital as to the ground thereof.

'4. Same—Erroneous Recitals—Amendments.

An attachment recited as the ground thereof that defendant, “a resident of this state, has departed therefrom with intent to defraud his creditors.” It appeared, however, that he had left the state to escape imprisonment for a crime of which he had been convicted, and had permanently taken up his residence in another country. Bold, under Code Civil Proc. §§ 721-723, providing for the correction by amendment of irregularities in any process, pleading, or other proceeding, that plaintiff would be allowed to amend the attachment by stating defendant’s nonresidence as the ground.

Appeal from special term, Erie county.

Action by the Thames & Mersey Marine Insurance Company, Limited, against Lorenzo Dimmick. Defendant died pending the action, and it was continued against Kate E. Dimmick, as executrix. A motion by the Continental Insurance Company, a subsequent attaching creditor, to vacate plaintiff’s attachment, was denied, and the Continental Insurance Company appeals.

Affirmed.

The opinion of DANIELS, J., at special term’is as follows:

“This action was brought to recover money charged to have been unlawfully obtained, and for money misappropriated, by the defendant, Lorenzo Dim-mick, while acting as an insurance agent for the plaintiff, and an attachment was obtained therein against his property on the 5th day of October, 1887. His property was seized by the sheriff by virtue of the attachment. While the attached property was in this manner held by the sheriff, and on the 3d day'of November in the same year, another attachment was obtained in favo of the Continental Insurance Company, in an action commenced by it against the same person, under which the same property was again attached by the sheriff; and on the 12th day of December, 1887, motion papers were served in behalf of the second attaching creditor to vacate the first attachment, and this motion was denied in February, 1888, on account of the insufficiency of the affidavits made to show the issuing and service of the second attachment. Leave was given to amend this motion, and further motion papers were served

p. 1097

soon thereafter, and that motion has been continued, until it was recently and finally submitted for decision.

“The affidavits presented in favor of the Continental Insurance Company now sustain the necessary facts to entitle it to make this motion, and tho notice, by an amendment permitted to be made, fully presents the objections deemed to exist to the papers upon which the plaintiff’s attachment was issued. Upon the argument of the motion the plaintiff’s counsel proposed io read further affidavits in support of its attachment, and, in case they should be received, the counsel for the Continental Insurance Company presented still further affidavits to meet and avoid those in this manner offered for the plaintiff; but as the affidavits served with the notice of motion go no further than to prove that the Continental Insurance Company had acquired the rights of an attaching creditor, and was therefore regular in making its motion, further affidavits on the part of the plaintiff cannot be received. Where the motion is founded solely upon objections to the original papers, as this motion has been, then neither the Code, nor the practice which has grown up under its provisions, permits the preceding attachment to be sustained by the use of additional affidavits to those on which it has been issued, (Code Civil Prov. §§ 682, 683; Sutherland v. Bradner, 34 Hun, 519 ; Ruppert v. Hang, 87 N. Y. 141 ; Head v. Wollner, 53 Hun, 615 , 6 N. Y. Supp. 916 ; Buhl v. Ball, 41 Hun, 61 ;) and it necessarily follows, as these affidavits must be rejected, that a like disposition must be made of those proposed to be read in reply, and the motiofi must be decided upon the effect of the affidavits upon which the plaintiff’s attachment was obtained.

“It does appear from these affidavits that the plaintiff had a just cause of action against the defendant, Dimmiclc, for tire recovery of money fraudulently obtained by him, and which he misappropriated, while he was acting as ancl in the capacity of the plaintiff’s agent, and that the amount stated to hi owing by him was over and above all counterclaims known to the plaintiff or to its managing agent in the United States, by whom one of the principal affidavits was made. It was then added that tins defendant had been indicted, tried, and convicted on one of the fraudulent charges made against him; that he had afterwards appealed from the judgment to the general term, which reversed his conviction, and the case was then appealed to the court of appeals, which reversed the order of the general term, and affirmed the conviction by a decision announced on the 4th day of October, 1887. It was then stated, on information and belief, that on the decision becoming-known at the city of Buffalo, where the defendant then resided, he had Absconded and fled to Canada, where he then was, and that he had departed from this state to evade his sentence of five years’ imprisonment, and also for the purpose of defrauding his creditors. That he did leave this state in this manner is manifest from the further affidavit made by Frank B. Grimm, who, as a detective, was employed to follow and watch his movements. He swore that Himmick entered the office of his counsel shortly after one o’clock, on the same day, where he remained three or four minutes, and that ‘he then came out, went to Niagara square, I following him, took a car on Niagara street to Hertel avenue. At the bams on Niagara street, I got out of the buggy in which I was following him, got aboard the car, and rode on the rear-platform, he riding on the front platform. At Hertel avenue Lorenzo Himmick got out, and walked down to the ferry, and I followed him. In order not to attract his attention, I went out to the end of the dock, leaving the said Lorenzo Himmick about the waiting room. When I returned to the waiting room he had gone, and I could not find him, though I diligently searched for him. He was not in the neighborhood. I saw a small rowboat out in the* river, with a passenger in the stem, and I after-wards learned that that man was Lorenzo Himmick.’ This affidavit so far confirmed the affidavit of the managing agent as to establish the fact that this defendant had left the state, and escaped to Canada, to avoid imprisonment. under the sentence pronounced upon him under his conviction upon the indictment. Tins departure was evidently hasty, and intended to be permanent, following information of the affirmance of his conviction. It does not Appear that he took his property with him, or made any disposition of it, or

p. 1098

of any part thereof, before or in anticipation of his flight. All that was shown was that it was probable that he had heard of the decision of the court of appeals against him, and that, upon the impulse produced by that information, he fled to Canada to avoid punishment. That was evidently his sole motive, and the facts, therefore, failed to support the conclusion that it was any part of his design by his flight to defraud his creditors. His object was to avoid punishment, and that alone. If it had been to defraud his creditors, the stc would probably have been taken before; but, so far from contemplating it, he remained in the state, as he previously had, until knowledge of this adverse decision came to him, and then immediately took his departure into a foreign country. One construction, only, can be placed upon this act, and it is that which has already been stated. The attachment was obtained the day following the defendant’s flight; and to comply with the requirement contained in section 641 of the Code of Civil Procedure, that it must briefly recite the grounds for it, the statement was made in it ‘that the defendant, Lorenzo Dimmick, a resident of this state, had departed therefrom with intent to defraud his creditors.’ That he, as a preceding resident of this state, had departed from it, was true in fact, but that his departure was the result of an intention to defraud bis creditors did not follow,. but was an incorrect assertion; and so far. as the attachment may have depended upon this recital it was irregular. First Nat. Bank of Marietta v. Bushwiclc Chemical Works, (Sup.) 6 N. Y. Supp. 318 .

“But this error in the recital, irregular as it is in this respect, will not require the attachment to be vacated, either on the defendant’s application, or that of the subsequent attaching creditor, for the motion to vacate by either has not been expressly provided for, on account of a defect of this nature contained in the attachment" itself. But it has been provided that it ‘may be founded only upon the papers upon which the warrant was granted,’ which are clearly distinguished from the attachment by the reasonable as well as clear import of this language, ‘or it may be founded upon proof by affidavit, on the part of the defendant,’ which in like manner provides for the employment of means differing from the attachment itself; and these are the only modes in which the motion has been specially provided. Code Civil Proc. §§ 682, 683. In the first case it has been restricted to the papers on which the warrant has been issued, and in the second to affidavits served on behalf of the moving party, when it may be resisted by further affidavits in support of the attachments. The motion to dismiss because of an erroneous recital in the attachment must therefore depend, if it can be maintained at all, on the general practice provided for the correction of mere irregularities; and, when it may be so-made, it becomes subject to the power of the court to allow them to be corrected. This power is very broad; so much so as to include this objection. By section 721 of the Code of Civil Procedure, various defects are enumerated which may be corrected and supplied, and section 722 has been made to include any others of like nature not being against the right and justice of the matter, which must, when necessary, be supplied, and the proceeding amended; and the following section has still further broadened this authority by including within it any process, pleading, or other proceeding. The attachment is a proceeding, and the authority to amend it has been extended to a mistake in any respect; and then it has been directed that ‘in every stage of the action the court must disregard an error or defect in the pleadings or other proceedings which does not affect the substantial rights of the adverse party/ This misrecital in no respect produced any injury to the defendant or the Continental Insurance Company, but, so far as each are interested, it was entirely and completely harmless. It was, at most, an irregularity without injury, and therefore to be either amended as a mate: of course, or disregarded; and these directions have been so understood and followed in other cases, (ICibbe v. Wetmore, 31 Hun, 424 ; Yiadero v. Yiadero, 7 Hun, 313 ,) and they may properly be here applied.

“It is not important that the defendant in the attachment, or his executrix, against whom the action has been revived since he became deceased, is not a party to the motion, for that has not been made essential to the exercise of the authority by these sections of the Code provided; but, whenever the pro

p. 1099

ceeding containing any of the defects referred to is brought before the court, it is to be corrected or the defect disregarded. Presenting the objection founded on the mistake or defect will at once bring the power to amend into activity, to be followed and applied to its correction. And that this is a proper case for correction follows from the fact that the affidavits proved the fact that Dimmick, although previously a resident of the state, had departed from it under circumstances evincing his intention to be not to return again, but to remain away from the state, and that at once terminated his residence in the state. From that time and his arrival there, he became a resident of Canada, which v as the ground upon which the Continental Insurance Company obtained its attachment. No length of residence was necessary to produce this change, but it was effected when he left this state, as he must be inferred to have done, and took up his residence in Canada, to avoid the punishment he had incurred for the violation of its laws. The case is unembarrassed by the uncertainty which was presented in Mayor v. Genet, 4 Hun, 487 , affirmed 03 N. Y. 646 , for his departure from the state could not surely be made to appear; but yet it was held that he had probably departed from its boundaries, and could be held to have become a resident of some other state or country. In this case no reason arises for doubting the fact that this defendant did leave this state and proceed to another country, intending there to take up his immediate residence, and to remain, which at once ended his residence here and transferred it to Canada. The residue of the recital in this attachment has also proceeded so far as to suggest the making of a change of residence by the debtor, for it is said that he ‘has departed therefrom,’ and the additional fact that this was with the intent to defraud his creditors indicates the departure to have been permanent for the time from which it might be plausibly inferred that he had ceased to be a resident of this state. But without depending upon this criticism it must, under the authorities, as well as the statutes, be held that whatever error or misrecital has taken place has been in no way injurious to the defendant or the Continental Insurance Company, and must be either disregarded or allowed to be amended. The motion will therefore be denied, without costs; and, if the plaintiff shall elect to amend this recital, it will be allowed to be done by stating the nonresidence of the defendant in its attachment, on payment of ten dollars costs of opposing the motion.”

Argued before DWIGHT, P. J., and MACOMBER and LEWIS, JJ.

Butler, Stillman & Hubbard, (Ansley Wilcox, of counsel,) for appellant.

Evarts, Choate & Beaman, (Henry W. Hardon and Treadwell Cleveland, of counsel,) for respondent.

Plaintiff’s motion to dismiss appeal denied, with <¡¡¡10 costs and disbursements. Order appealed from affirmed, on opinion of DAHEELS, J., at special term.

Cases cited

Ruppert v. Haug 87 N. Y. 141 N.Y. 1881-12-06 p. 1097