Head v. Wollner — 25 N.Y. St. Rep. 645

Majority

p. 645

George W. Head et al., App’lts, v. Conrad Wollner, Resp’t.

(Supreme Court, General Term, Fourth Departnmnt,

Filed July 20, 1889.)

Headnote

1. Attachment—Affidavit.

An affidavit for an attachment on the ground that the defendant keeps himself concealed to avoid service of summons must state facts clearly and positively showing such concealment and intent. Mere absence of the defendant from his usual place of business is not sufficient.

2. Same—Additional supporting affidavits cannot be used on motion TO VACATE ON THE ORIGINAL PAPERS.

On a motion to set aside an attachment, made upon the papers on which it was granted, additional affidavits cannot be used to support the attachment.

p. 646

Appeal from an order of the Onondaga special term setting aside an attachment issued on the alleged ground that the defendant kept himself concealed to avoid the service of a summons in the city of Utica. A motion was made upon the affidavits and papers used to obtain the attachment.

William H. Bright, for app’lts; H. F. and J. Coupe, for resp’t.

Plaintiff obtained an attachment January 24, 1889, upon the ground that defendant kept himself concealed to avoid the service of a summons.

Section 636 of the Oode of Civil Procedure requires the party obtaining an attachment on such ground to show by affidavit to- the satisfaction of the judge granting the same that the defendant keeps himself concealed with intent to avoid the service of a summons.

The affidavit must make legal proof so as to judicially satisfy the officer who is called upon to issue an attachment. Mott v. Lawrence, 17 How., 559 .

Because the defendant was not found at his place of business where the agent of plaintiff called on the 22d of January or on the 23d of January, did not establish concealment nor intent to conceal to avoid service of a summons. Towsley v. McDonald, 32 Barb., 608 ; Wallach v. Sippilli, 65 How., 501 ; Castellanos v. Jones, 5 N. Y., 164 .

Ambiguous declarations or acts which are susceptible of an honest purpose as well as of an intent to avoid service, do not authorize an attachment. The purpose to accomplish a concealment with intent to avoid service of a summons, is the ground mentioned in the statute, and it must be made clearly and positively to appear by the facts; they must be clearly and positively shown. Not by information and belief, unless the source of such information and belief is clearly shown. Steuben County Bank v. Alberger, 18 N. Y., 252 ; Andrews v. Schwartz, 55 How., 190 .

If the defendant was out of his store collecting, or had gone down town on business, as was stated to the plaintiff’s agent, then he was engaged legitimately, and such engagement did not indicate an intent to avoid service of summons. Sickles v. Sullivan, 5 Hun, 569 .

In Genin v. Tompkins ( 12 Barb., 265 ), there was an actual concealment for nine hours shown under circumstances warranting an inference therefrom, that the defendant intended to avoid service of summons; and in that case no member of his family, “no person in his employment knew where he was,” while he was concealed in Kipp’s tavern. Where the statements as in this case are intrinsically innocent, they do not establish the intent required by the statute. Evans v. Warner, 21 Hun, 574 . The-belief of the affiant that the defendant was concealed with intent to avoid service of summons is not sufficient; tacts tending to prove it were not sufficiently stated so that it

p. 647

might be judicially determined that such was the intent of the defendant. Stevens v. Middleton, 26 Hun, 474 . Conjectures, surmises and suspicions are not sufficient. Herman v. Doughty, 15 Week. Dig., 94. In that case it was said, viz.: “ The proof should be of such a character as to fairly justify no other construction and dishonest purposes on the part of the defendant.” Appellants call attention to Schoonmaker v. Spencer ( 54 N. Y., 366 ); that was a case involving the validity of an attachment issued by a justice of the peace and rested upon facts and circumstances tending to show the defendant had left the county and state, with intent to defraud his creditors, and as the facts fairly called for a judicial conclusion that such was the intent of the defendant, the attachment was upheld. We see nothing in the case which sustains the sufficiency of the affidavits before us.

Inasmuch as the motion was made upon plaintiff’s papers used to obtain the attachments, the plaintiffs were not at liberty to use further or other supporting affidavits. Steuben County Bank v. Alberger, 75 N. Y., 185 . We must sustain the order of the special term.

Order affirmed, with ten dollars costs and disbursements.

Martin, J., concurs; Merwin, J., not sitting.