Empire Warehouse Co. v. Mallett

The papers on which the attachment was grant-

ed are defective, in that they fail to show assignment, disposal, or secretion of property by the defendants with the intent to defraud creditors, as required by section 636 of the Code of Civil Procedure. Every allegation relating to an alleged assignment, disposal, or secretion of their property by the defendants with intent to defraud their creditors is made upon information and belief, and the grounds of such information and belief are withheld. The cause of action alleged in the complaint is that the defendants as agents for the plaintiff, received from time to time sums of money belonging to the plaintiff, aggregating $44,018.98, which they wrongfully converted to their own use. If the requirements of section 636 of the Code of Civil Procedure could be satisfied by affidavits to the effect that defendants had assigned, disposed of, or secreted such sum with intent to defraud their creditors, the attachment could be upheld. But it does not suffice to show that defendants have assigned, disposed of, or secreted plaintiff’s property, for the demands of the statute can only be met by showing that the defendants have made such disposition of their own property with such intent. Bank v. Dash, 60 How. Pr. 124 . The plaintiff ingeniously seeks to meet this difficulty by the following argument:

“By the commencement of this action the plaintiff waived the tort committed by the defendants in the conversion and appropriation to their own use of the funds collected by them as agents of the plaintiff, and thus the title to the moneys so collected passed to, and became vested in, the defendants; and therefore, in assigning, secreting, and disposing of such moneys, they have so disposed of their own property as to defraud the plaintiff; and, the affidavits being sufficiently full and definite in that respect, the requirements of the statute are sufficiently complied with.”

1. It has already been decided otherwise in Bank v. Dash, supra.

2. At the time the defendants are alleged to have assigned, disposed of, or secreted the moneys of the plaintiff, the title was not vested in them. The title was then in the plaintiff, and continued to be in it until the commencement of this action, when for the first time the plaintiff waived the tort, and sought to recover upon an implied contract. Plaintiff’s argument, therefore, is defective in that it necessarily assumes that the title to the moneys was in the defendants at the time they are alleged to have assigned or disposed of them; whereas, in fact, the title was in the plaintiff at that time, and so continued until the commencement of this action. The order should be reversed, with $10 costs and printing disbursements, and the motion to vacate the attachment granted, with $10 costs.