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Hallock v. Van Camp

8 N.Y.S. 588 Court N.Y. Gen. Term Decision date 1889-12-30 English

Contents

Majority

p. 588
Hallock v. Van Camp.
(Supreme Court, General Term, Fifth Department.
December 30, 1889.)

Headnote

1. Attachment—Affidavit.
Affidavits made and filed before a judge to obtain an attachment against the goods of an absconding debtor may be read in support of a similar application, made to the samé judge, on the same day, by other plaintiffs against the same defendant, to support the charge of absconding.
2. Same—Amendment.
Such an attachment may be amended so as to make it specifically refer to the other affidavits so read before the judge.
8. Same—Dissolution—Evidence.
It is "proper to permit an affidavit to be read, on a motion to dissolve, identifying the affidavits on which the attachment was granted.
Appeal from special term, Monroe county.
Action by Stephen Hallock against Benjamin F. Van Camp, in which an attachment was issued. Defendant moved to dissolve the attachment on the same papers on which it was granted. The motion was denied, and he appeals.
Argued before Barker, P. J., and Dwight and Macomber, JJ.
Charles A. Keeler, for appellant. John Cunneen, for respondent.

Upon an attentive reading of all the affidavits, we have reached the conclusion that the facts established fairly justified the conclusion that the defendant secretly left his home, and departed from the state, with an intent to cheat and defraud his creditors, and to avoid the service of a summons; and on this examination of the proofs we have kept in mind and observed the rule that the statement of a fact by a witness on his oral examination, or by his affidavit in writing, when it appears that his only information is derived from another, proves nothing. In support of the order allowing the attachment in this case, the plaintiff presented to the county judge who made the order original affidavits which had been used in previous applications, made the same day, for attachments against this defendant, in cases where other-parties were the plaintiffs, for the purpose of supporting the charge that the defendant had departed from the state. This practice is permissible in cases where the application is made before the same officer at a time so near to the time when the previous applications were made. Mojarrieta v. Saenz, 80 N. Y. 547 ; Barnard v. Heydrick, 49 Barb. 62 ; Langston v. Wetherell, 14 Mees. & W. 104; Colver v. Van Valen, 6 How. Pr. 102 .

On the hearing of the motion, an order was made allowing the writ of attachment to be amended by making specific reference to the affidavits which were presented and read to the county judge for the attachment. We do not discover in this any error; at most, it was a mere irregularity, which certainly could not vitiate the attachment. The affidavit read by the plaintiff indicating the papers that were read before the county judge was not new proof upon the merits, and was properly received for the purpose of identifying the papers upon which the attachment was allowed. The order appealed from should be affirmed, with $10 costs and disbursements.

Dwight, J., concurs. Macomber, J., not voting.

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