American Horse Exchange, Ltd. v. Strauss

Headnote

1. Attachment—Inconsistent Statements.

An attachment which recites as the grounds therefor, that defendants have assigned, disposed of, and secreted, and are about to assign, etc., their property with intent to defraud their creditors, is defective, as stating two grounds of attachment which are inconsistent with each other.

2. Same—Affidavit—Conclusions of Law.

Averments, in an affidavit, that defendants have advertised their property for sale without giving the name of any person as owner, that they are claiming, or causing it to be understood, that the property is owned by a third person, and that from these facts affiant has ascertained that defendants are about to sell or dispose of such property in such manner as to make the public believe that it belongs to others, in order that they may receive the proceeds in a secret manner, so as to avoid the payment of their debts, are insufficient, as stating mere conclusions of law.

Appeal from special term, New York county. ■

Action by the American Horse Exchange, Limited, against Jacob Strauss and another. From an order denying a motion to vacate an attachment granted on the ground, as recited in the warrant, “that the defendants are natural persons, who have assigned, disposed of, and secreted, and are about to assign, dispose of, and secrete their property with intent to defraud their creditors, including plaintiff,” defendant Hamburger appeals.

The allegations in plaintiff’s affidavit in regard to the fraudulent action on the part of defendants are as follows:

And this deponent further says that the defendants, Jacob Strauss and Max Hamburger, are natural persons, and that they have removed, and are about to remove, property from the state, with intent to- defraud their cred

itors, and have assigned and disposed of, and secreted, and are about to assign, dispose of, and secrete, property with the like intent; and deponent further says that the facts in regard to this allegation are that the said defendants are the owners of divers horses numbering in all about four-teen, which horses are the same horses which have been kept by the plaintiff, as hereinabove mentioned and set forth, and for the keep and care' of which the aforesaid sum of $1,686 is due as aforesaid; and that the said defendants surreptitiously removed, from time to time, all the said-horses from the stables of the plaintiff, while the plaintiff had a lien upon the said horses for their keep, and have recently advertised the same' for sale in the public papers, in none of which is the name of any person-given as owner of the horses, and in one or more of which papers the said horses are mentioned as being horses “formerly the property of Messrs. Jacob Strauss & Co.,” the said defendants conducting business under that name, and the said defendants now claiming, or causing it to be understood, that the said horses are now owned by a brother-in-law of one of the defendants; and that from these facts, and investigations which deponent has made, he has ascertained, and now states, that the said defendants are about to self and dispose of the said horses in such manner as to make the public believe' that the same are not their property, but belong to some other person or persons, and so that they may receive the proceeds thereof in a secret manner,- and avoid the payment of the debts due from them to their creditors, inelud-ing the aforesaid sum due to the plaintiff as aforesaid.