Buell v. Van Camp — 28 N.Y. St. Rep. 907

Majority

p. 907

George C. Buell et al., Resp’ts, v. Benjamin F. Van Camp, App’lt.

(Supreme Court, General Term, Fifth Department,

Filed December 30, 1889.)

Headnote

1. Attachment—Affidavit.

An affidavit for an attachment should he deemed sufficient, although the facts are stated on information and belief, where the sources of information are given and inability to procure the affidavits of the informants is proved.

•%, Same—Sufficiency of proof.

One of the affidavits showed that defendant had gone away without the knowledge of his neighbors; that his wife received a letter from him which caused her much grief, and stated on information and belief that she told her sister that he had gone to Canada. Another affidavit stated that defendant had been called to account as an executor, and that instead of appearing on the return day he absconded and had been removed from his trust. Held, that the affidavits tended to show that he had left the state with intent to defraud his creditors, or to avoid service of a summons, and that they were sufficient to warrant the issuing of an attachment.

Appeal from an order of Monroe special term, denying the defendant’s motion to vacate an attachment obtained by the plaintiffs upon the property of the defendant, the motion being made solely upon the papers on which the original order was granted by the county judge of Orleans county.

Horace McGuire, for resp’ts; David N. Salsbwry, for app’lt.

These are the same affidavits which we had before us on the appeal from an order in this action, in which our decision is reported in 6 N. Y. Supp., 365 ; 24 N. Y. State Rep., 866.

There, the motion was made in behalf of the Orleans County National Bank, a subsequent lienor who intervened in this action for the purpose of making such motion. On appeal it was decided, among other things, that upon the hearing of that motion at special term the plaintiff’s counsel should have been permitted to read an affidavit showing that the county judge, when he granted the warrant of attachment, actually had before,

p. 908

liim the original affidavits made by Mr. Jerome and Mr. Kelsey,' and that such original affdavits were acted upon by the judge, though only copies of them were attached to the plaintiff’s papers. We there held that they were admissible, even though they were not entitled in this action. This question, among others, is sought to be raised again upon this appeal, but it is not necessary for us to recur to that branch of the case, because in the order here appealed from it is expressly stated that the originals of the Jerome and Kelsey affidavits were before the county judge on this application.

The appellant Jerome was a brother-in-law of the defendant, living opposite him. His affidavit shows that Van Camp had gone away without the knowledge of his neighbors ; that after he had been gone several days his wife had a letter from him which caused her much grief; that she refused to tell his whereabouts; that none of his family knew of his intention to leave the state, or where he was, until they received the letter. This is not hearsay evidence, but is given upon the knowledge of Jerome positively sworn to. Upon information and belief it was stated that Mrs. Van Camp had told her sister that her husband was in Canada, although she refused to divulge it to Jerome. A proper excuse is given for the failure to get Mrs. Van Camp’s- affidavit to that effect. Evidence must be considered and should be deemed sufficient, though given upon information and belief, where the sources of the information are given and inability to procure the affidavits of the informants is proved.

Kelsey’s affidavit shows that Van Camp had been called upon to account, as executor, by citation returnable the day he left the state, and that instead of appearing upon that citation and filing his accounts,he absconded,and that he had been removed from his trust. Both of these affidavits taken together show, with reasonable certainty, that Van Camp had left the state with the intent to avoid the service of process, or to defraud his creditors. The intent with which the defendant departed the state must be derived from the-circumstances attending such flight, which, in this instance, point with much clearness to a purpose on his part to elude processes of the courts.

In the absence of a clear explanation of the conduct of the defendant, he must be held to have intended exactly what any reasonable person would have believed upon the evidence here presented. We think that the affidavits tended to show by legal evidence that Van Camp had left the state, either with the intent to-defraud his creditors, or to avoid the service of a summons.

It is sufficient to sustain the attachment if the affidavits show that the intent to do either of these acts existed. Van Alstyne v. Er wine, 11 N. Y., 331 .

The order appealed from should be affirmed, with ten dollars, costs and disbursements.

Barker, P. J., and Dwight, J., concur.