Hyperlawhypertext legal database New Rochelle Coal & Lumber Co. v. McGraw 38 N.Y.S. 353

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New Rochelle Coal & Lumber Co. v. McGraw

38 N.Y.S. 353 Court N.Y. App. Div. Decision date 1896-04-07 English

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p. 353
( 8 App. Div. 252 .)
NEW ROCHELLE COAL & LUMBER CO. v. McGRAW.
(Supreme Court, Appellate Division, Second Department.
April 7, 1896.)

Headnote

Attachment—Grounds—False Statements—Proofs.
For the purpose of obtaining an extension of credit, defendant assigned to plaintiff a mechanic’s lien, filed by defendant, and gave him an order on a third person for money due him. fleitf, that the declaration of such third person to plaintiff that he owed defendant nothing, and the allegation of the mechanic’s lien defendant in the answer interposed in a suit by plaintiff to enforce the mechanic’s lien that defendant had previously assigned it to his wife, are not sufficient, as against the denials of defendant, to warrant an attachment for false statements of defendant, it appearing that
, the person on whom the order was given and the defendant in the mechanic’s lien suit were accessible, and it not being shown that their affidavits could not be obtained.
Appeal from special term.
Action by the New Bochelle Coal & Lumber Company against Frederick J. McGraw. From an order vacating and setting aside
an attachment issued in the action, plaintiff appeals.
Affirmed.
Argued before BROWN, P. J., and PRATT, CULLEN, BARTLETT, and HATCH, JJ.
Charles T. Terry, for appellant.
Norman A. Lawlor, for respondent

The action is to recover the amount of three promissory notes, made by the defendant to the plaintiff, and also the value of goods sold and delivered on an open account. The ground on which it was sought to obtain the attachment was that the defendant made a false statement, in writing, of his financial responsibility and standing, for the purpose of procuring an extension of credit. It appears that the notes had been delivered by and the goods sold to the defendant before the alleged false statement on his part. The false statement claimed to have been signed by liim is the implied warranty or assertion of title contained in an assignment to the plaintiff of a mechanic’s lien filed by the defendant against certain real property, and in an order directing one Keating to pay the. plaintiff the sum of $600, and deduct the same from the last payment due the defendant for work on Keating’s house. The only evidence to show that nothing was due from Keating to the defendant at the time of the order was the declaration made by Keating to the plaintiff’s agent, and the only evidence of the invalidity of the mechanic’s lien was an allegation in the answer interposed in a suit by the plaintiff to enforce the mechanic’s lien that the defendant had previously assigned his interest therein to his wife, Elizabeth McGraw.' No affidavits by Keating or by Osiecki, the defendant in the mechanic’s lien suit, were produced. The affidavits on the part_of the plaintiff show that Keating and Osiecki are entirely accessible^ and no reason is given why affidavits from those parties were not obtained. The affidavit by defendant avers the validity of his claims against both persons, and denies the assignment of the mechanic’s lien to his wife. In this denial the defendant’s ■wife, by her affidavit joins. We think the order below was correct.

p. 354
If it be conceded that these two instruments executed by the defendant were, within the meaning of the Code, statements in writing under his hand of his title to the choses in action assigned, and also of the existence and validity of such choses in action, still the only proofs tending to establish the falsity of such statements were the hearsay statement of Keating and the allegation of Osiecki’s answer. These statements are unavailing certainly when denied by defendant, because it was not shown that the persons from whom they were obtained were absent, or that their depositions could not be procured. Yates v. North, 44 N. Y. 271 ; Bank v. Alberger, 78 N. Y. 252 .

The order appealed from should be affirmed,«with $10 costs and disbursements.

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