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Reynolds v. Horton

22 N.Y.S. 18 Court N.Y. Gen. Term Decision date 1893-02-13 English

Decision Majority — *19 DYKMAN, J. · Dissent — BARNARD, P. J.,

Contents
p. 18
(67 Hun, 122.)
REYNOLDS et al. v. HORTON.
(Supreme Court, General Term, Second Department.
February 13, 1893.)

Headnote

Attachment—Fraud.
Plaintiff sold and delivered to defendant, who was starting in business, $500 worth of goods, on his representation that he was worth $800 in cash; terms half cash, balance in 80 days. On failing to make the first payment, defendant was written to, and replied that he was worth $800, but no pay-ment was made; and, at the expiration of the 30 days, plaintiff’s representative, calling at defendant’s store, was told that he was on his way to plaintiff’s place of business in another city. He did not call there, and inquiries were made of his wife and mother, but they knew nothing of his whereabouts. The cashier of defendant’s bank told plaintiff's representative that, two days before the expiration of the 30 days on which he had bought the goods, defendant drew out all his deposit, amounting to $700. Held, that the facts did not warrant an attachment on the ground that they showed a fraudulent contraction of the debt, and concealment by the debtor to avoid process. Barnard, P. J., dissenting.
Appeal from Columbia county court.
Action by William T. Reynolds and others against William S. Horton. From an order vacating an attachment on motion of Charles A. Van Dusen, a junior attaching creditor, plaintiffs appeal.
Affirmed.
Argued before BARNARD, P. J., and DYKMAN and PRATT, JJ.
J. S. Van Cleef, for appellants.
Brownell & Cochrane, for respondent.

This is an appeal from an order made by the county judge of Columbia county, vacating an attachment against the property of the defendant, Horton. Our conclusion is that the attachment was improperly granted, and the order vacating the same was right. The order should be affirmed, with $10 costs and disbursements.

PRATT, J., concurs.

(dissenting.) On the 12th of May, 1892, the plaintiffs sold and delivered to the defendant goods of the value of $441.96. On the 13th of May, 1892, they sold, in addition, goods of the value of $27.35. On the 17th of May, 1892, they sold to defendant goods of the value of $34, and on the 24th of May, 1892, an additional amount of $11.90,—in all $515.21. The defendant, at the time of the first purchase, stated that he was worth $800 in cash; and he was to pay half on delivery of the goods, and the balance in 30 days. Defendant had a place of business in Hudson, N. Y., and the goods were at once delivered to him, upon their purchase. The defendant did not pay the half cash, and, upon being written to by plaintiff, replied by letter that he was worth $800. No payment was made, and on the 13th of June, 1892, the plaintiff sent one Boice to Hudson to collect the bill. He found the clerk in the store, who told him that defendant had gone to Albany in the morning, and was going from there to Poughkeepsie, where the plaintiffs did business. He did not go there, but the plaintiffs heard that he was in Fishkill, Dutchess county. They sent a clerk there, and the defendant’s wife and mother knew nothing of his whereabouts. The cashier of the bank in Hudson informed Boice that on the 11th of June, 1892, the defendant drew out his balance, within a few cents, which was $700. The defendant had been there a month. The proof was hearsay as to the drawing out the bank deposit, but the evidence falls within the principle recognized in Buell v. Van Camp, 119 N. Y. 160 , 23 N. E. Rep. 538 . The facts stated show a fraudulent contraction of the debt, and concealment by the debtor to avoid service of process. The order should be reversed, with costs and disbursements.

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