Nyack & Warren Gas Light Co. v. Tappan Zee Hotel Co. — 24 N.Y. St. Rep. 723

Majority

p. 723

The Nyack and Warren Gas Light Co., Resp’t, v. The Tappan Zee Hotel Co. (Limited), App’lt.

(Supreme Court, General Term, Second Department,

Filed June 28, 1889.)

Headnote

Attachment—When vacated.

Where it appears that the answering affidavits of the defendant meet and answer a case made by a plaintiff for an attachment, and it appears, that the removal of the goods from the state was but temporary, and only while they were in transit through another state to New York for storage, the attachment should be vacated.

Appeal from an order denying a motion to vacate an attachment.

The ground of the attachment is stated to be that the defendant has assigned or disposed of its property with intent to defraud its creditors, or is about to do so.

A. S. Tompkins, for resp’t; George Wilcox, for app’lt.

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 Nyack to New 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 New York, it was but a temporary absence, while they

p. 724

were in transit through the state of New Jersey to New York for storage and safe-keeping.

The circumstance 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. No costs.

All concur.