Buell v. Van Camp — 24 N.Y. St. Rep. 866

Majority

p. 866

George C. Buell et al., App’lts, v. Benjamin F. Van Camp (Oleans County National Bank), Resp’t.

(Supreme Court, General Term, Fifth Department,

Filed June 22, 1889.)

Headnote

Attachment — Application to vacate —When supporting affidavits COMPETENT.

Where the moving party on a motion to vacate an attachment granted upon the ground that the debtor had departed from the state, with intent to defraud his creditors and avoid the service of a summons, does not confine the facts alleged in his affidavits to the mere formal parts of the motion, but introduces new matters in the moving papers, the party in whose favor the attachment was procured, should be permitted to read affidavits in support of the order.

p. 867

Appeal from an order, made at the Erie special term, vacating an attachment procured by the plaintiffs.

Motion to vacate the attachment was made by the Orleans County National Bank),-a subsequent attaching creditor, and made in form of noticé of motion upon the same papers used in obtaining the attachment.

Horace McGtdre, for app’lts; Sawyer & Bullard, for resp’t, the Orleans Co. National Bank.

The motion to vacate the attachment, which had been procured by the plaintiff, was made ostensibly upon the papers upon which such order of attachment had been granted. The moving party, however, was not content, in making this motion, to confine the facts alleged in his affidavit to the mere formal parts of the motion. On the hearing of the motion, after the reading of the moving affidavits to set aside the attachment, the plaintiffs’ counsel, claiming that the moving party had introduced new matter, procured and offered to read affidavits in support of the original order of attachment. This was denied him, as being inadmissible, the court holding that the motion was made solely upon the original affidavits upon which the order of attachment had been procured and not upon new matter. These facts bring up the main question in this case.

Had the moving party brought before the special term only the matters alleged in the original affidavits filed by the plaintiffs, the rule administered would undoubtedly have been correct; but it appears that other matters were introduced in such moving papers of such a character as would permit the plaintiffs to read affidavits in support of the order. The attachment was granted to the plaintiffs upon the ground that the defendant had departed from the state of New York with the intent to defraud his creditors and to avoid the service of a summons upon him. The moving party, the Orleans County National 'Bank, caused to be inserted in the affidavits the facts that since the land had been advertised for sale under the judgment procured by the bank, the defendant Van Camp had confessed a judgment-for about nine hundred dollars, and that he now resides on his farm, in that county, with his wife. These facts tended directly to show that Van Camp had not departed the state to defraud his creditors or to avoid the service of process upon him. They could have been introduced for no other purpose than to convey to the mind of the court the fact that he was still a resident of the county, and was within reach of the process of the court. This opened the way for the plaintiffs to read the supporting affidavits which they presented to the court.

The plaintiff’s counsel also offered to read to the special term an affidavit to show what took place before the county judge when the attachment was granted, which was designed to show that the original affidavits of two witnesses, Jerome and Kelsey, were actually before the judge granting the order, and were acted upon by the

p. 868

judge, though copies of them only were attached to the affidavit made by one of the plaintiffs. The affidavits of those witnesses were not entitled in this action, it is true, but they were produced before the judge at the time of the granting of the order in question, and were considered by him at the time, as is shown by the rejected affidavit. This affidavit was also competent, and the appellant’s counsel should have been permitted to read it. For these reasons, we think that the order appealed from should be reversed, with ten dollars’ costs and disbursements.

All concur.