Hallock v. Camp — 28 N.Y. St. Rep. 337

Majority

p. 337

Stephen Hallock, Resp’t, v. Benjamin F. Camp, App’lt.

(Supreme Court, General Term, Fifth Department,

Filed December 30, 1889.)

Headnote

Attachment—Affidavits in othee cases mat be used to support.

In support of an attachment sought upon the ground that defendant had departed from the state with intent to defraud his creditors the plaintiff presented to the county judge original affidavits used before the same judge on prior applications of a similar nature granted the same day by him. The purpose was to support the charge that defendant had departed from, the state. Held, that the practice was permissible.

Appeal from an order of the Monroe county special term, denying the defendant’s motion to vacate an attachment against property, founded on the same papers upon which the same was granted.

Charles A. Keeler, for app’lt; John Cunneen, for resp’t.

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 Ms 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 Ms affidavit in writing, when it appears that Ms 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 supportmg 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

p. 338

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 ten dollars costs and disbursements.

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