Williams v. Rightmyer — 34 N.Y.S. 826

Majority

p. 826

(88 Hun, 372.)

WILLIAMS v. RIGHTMYER et al.

(Supreme Court, General Term, Fourth Department.

July 5, 1895.)

Headnote

Attachment—Statement of Ground.

The statement that defendant is a resident of the state, and “keeps himself concealed therein, with intent to defraud his creditors and to avoid the service of a summons,” is a proper statement of a sufficient ground for attachment, and is not vitiated by the conjunctive statement of an insufficient ground.

Appeal from special term, Broome county.

Action by Roger B. Williams against Homer W. Rightmyer and others. Prom an order denying a motion to vacate an attachment, Eugene Terry, as assignee for the benefit of creditors of defendant Rightmyer, appeals.

Affirmed.

Argued before HARDIN, P. J., and MARTIN and MERWIN, JJ.

William Hazlitt Smith, for appellant.

Newman & Blood, for respondent.

On the 21st November, 1894, on the application of the plaintiff, an attachment was issued by the county judge of Tompkins county against the property of the defendant. On the 23d November, 1894, the defendant executed a general assignment to the appellant, Terry. This is dated November 19,1894. Thereafter, upon notice dated December 29, 1894, the assignee moved at special term upon affidavits to vacate the attachment. In opposition to the motion, additional affidavits were presented on the part of the plaintiff, and the assignee was allowed to put in replying affidavits. Upon this appeal it is claimed (1) that the grounds upon which the attachment was' issued are not stated therein as required by the Code of Civil Procedure, in that they are stated in the disjunctive; and (2) that upon the facts the attachment should be vacated. In the attachment it is stated “that the defendant is a natural person and a resident of the state, and keeps himself concealed therein with intent to defraud his creditors and to avoid the service of a summons, and that the defendant has assigned, disposed, or secreted, or is about to assign, dispose of, or secrete, his property, with intent to defraud his creditors.” The statement that “the defendant has assigned, disposed, or secreted, or is about

p. 827

to assign, dispose of, or secrete, his property, with intent to defraud his creditors,” is not a proper statement of any ground, within the case of Cronin v. Crooks, 143 N. Y. 352 , 38 N. E. 268 . The statement, however, that the defendant is a resident of the state, and “keeps himself concealed therein with intent to defraud his creditors and to avoid the service of a summons,” is a proper statement of a sufficient ground, within the rule laid down in Garson v. Brumberg, 75 Hun, 336 , 26 N Y. Supp. 1003 . This is not vitiated by the fact that an insufficient statement is conjunctively attached.

Upon the facts, the question was whether, at the time the attachment was issued, the defendant kept himself concealed within the state with intent to avoid the service of a summons. Code Civ. Proc. § 636. That this was satisfactorily shown was the conclusion reached by the special term, after each side had full opportunity to present his case. This conclusion should not, we think, be disturbed.

Order affirmed, with $10 costs and disbursements. All concur.

Cases cited

Cronin v. Crooks 143 N. Y. 352 N.Y. 1894-10-16 p. 827