Salzberg v. Mandelbaum — 35 N.Y.S. 1014

Majority

p. 1014

(89 Hun, 497.)

SALZBERG v. MANDELBAUM.

(Supreme Court, General Term, First Department.

October 18, 1895.)

Headnote

Attachment—Sufficiency of Affidavits.

An affidavit for attachment alleged that defendant had caused a pretended mortgage of his property to be recorded with intent to defraud his creditors. The only proof offered of such fraudulent intent was the affidavit of one who ■ stated that certain alleged real owners of the property had admitted that the mortgage was fraudulent. Held insufficient to support the attachment.

Appeal from special term, New York county.

Action by Rachel Salzberg against Joseph Mandelbaum for the fraudulent disposition of his property. From an order vacating and setting aside a warrant of attachment, plaintiff appeals. Affirmed.

The opinion of Mr. Justice O’BRIEN at special term is as follows:

This attachment was granted upon the ground that the defendant had fraudulently disposed of his property, and it is assailed upon this motion upon the ground that the papers are insufficient. After a statement of the plaintiff’s cause of action, the affidavits recite, in effect, that the defendant conveyed the property No. 232 East Ninety-Seventh street to one Joseph Holtzberg; and, while we have the conclusion stated that this was fraudulently done, there are no facts to support it. In addition, it is stated that the defendant now holds the title to premises No. 97 Perry street, and that with intent to defraud his creditors he disposed of his equity in the premises by causing a pretended mortgage for $7,000 in favor of one Lieb Iiowalsky to be recorded. The evidence offered to support the conclusion that such mortgage was fraudulent consists of the affidavit of a person who states that Simon Rose and Abraham Mandelbaum, who, it was alleged, were the real owners of the property, had admitted that such mortgage was fraudulent. Such an affidavit is insufficient, for either the defendant was the real as well as the ostensible owner of the Perry street property, in which case he could not be affected by admissions made by third parties who are not his agents, and who hold no such relations to him as to make their admissions binding, or, if we take the other view, that the persons who admitted that the mortgage was fraudulent were the real owners, and the defendant was only the ostensible owner, then their creditors, and not the defendant’s, were defrauded by such mortgage. There are other objections to the validity of this attachment, but the one suggested as to the insufficiency of the papers upon which the attachment

p. 1015

was granted need only be referred to. The motion is accordingly granted, with $10 costs.

Argued before VAN BRUNT, P. J., and PARKER, J.

Adolph Cohen, for appellant.

Ira Leo Bamberger, for respondent.

Order affirmed, with costs, on the opinion of the court at special term.