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Nyack & Warren Gas-Light Co. v. Tappan Zee Hotel Co.

6 N.Y.S. 113 Court N.Y. Gen. Term Decision date 1889-07-02 English

Delivered by Pratt, J.

Contents

Majority

p. 113
Nyack & W. Gas-Light Co. v. Tappan Zee Hotel Co., Limited.
(Supreme Court, General Term, Second Department.
July 2, 1889.)

Headnote

Attachment—Dismissal.
An attachment on the ground that defendant is about to remove his property from the state will be vacated where it appears that the removal was openly made, and that the property was only temporarily out of the state while on the way to New York city for storage; but, as there were apparent grounds for suspicion, it will be done on condition that no notion be brought on the undertaking.
Appeal from circuit court, Rockland county.
The Hyack & Warren Gas-Light Company sued the Tappan Zee Hotel Company, Limited, in attachment, alleging that defendant had removed its property from the state with intent to defraud its creditors. Defendant answered that, as the hotel was about to close, defendant moved the property to Hew York city for storage, where it was at the time the suit was brought, and was only out of the state temporarily in Hew Jersey while on the way to Hew York city. Defendant appealed from an order refusing to vacate the attachment.
Argued before Barnard, P. J., and Dykman and Pratt, JJ.
George Wilcox, for appellant. Arthur 8. Tompkins, for appellee.

It may be doubted whether the papers upon which the attachment was granted were sufficient. But, if that question be decided in favor of plaintiff, it appears that the answering affidavits of the defendant meet and answer the case made by the original papers. The person who removed the goods from Hyack to Hew York avers that he acted openly, showing to all inquirers the written instructions under which he acted. It appears that if the goods were removed from the state of Hew York it was but a temporary absence, while they were in transit through the state of Hew Jersey to Hew York for storage and safe-keeping. The circumstances of suspicion upon which the attachment was granted having been explained, it should be vacated. But, as some apparent grounds existed which may well have given rise to alarm to creditors, it must be upon condition that no action be brought upon the undertaking. Upon that condition being complied with, order appealed from reversed, and attachment vacated. Ho costs.