Taylor v. Hull — 29 N.Y. St. Rep. 635

Majority

p. 635

William F. Taylor et al., Resp’ts, v. Almon M. Hull, App’lt.

(Supreme Court, General Term, Third Department,

Filed February 24, 1890.)

Headnote

Attachment—Affidavit.

An affidavit upon which an attachment is granted is insufficient, under

p. 636

Code Civ. Pro., § 636, sub. 2, where upon the questions of fraudulent assignment or departure from the state with intent to defraud, it only states that defendant has transferred his farm to his wife and has gone to one of the Western states, and that deponent has been informed by certain persons that defendant had said he was about to remove to Dakota and settle there, and had told the deponent that he intended to leave this section of the country; also, that he had written deponent that he could not pay his debts.

Appeal from order refusing to set aside and vacate a warrant of attachment against the defendant.

Henry A. King, for app’lt; William Powell, Jr., for resp’ts.

This is an appeal from an order refusing to vacate an attachment.

The defendant is the maker and plaintiffs are accommodation endorsers of a note which had been discounted in a bank in Troy. The affidavit made on the 13th day of July, 1889, states that they paid the note the 15th of that month and then became owners. This does not appear to be a clerical mistake; the undertaking is dated and acknowledged on the 13th of July before the same officer who took the affidavit. So, also, the justifications. The summons is dated the 15th of July, and the affidavit states that it has been issued.

A more serious defect, however, is the failure to show that defendant has assigned his property fraudulently or departed from the state with intent to defraud.

The facts stated are, that defendant has transferred his farm to his wife and gone to one of the western states; that deponent was informed' by Hakes and Jones that defendant had said he was about to leave for Dakota and settle on a farm there, and that defendant had also stated to deponent that he intended to leave this section of the country. In all this there is no evidence of fraud.

Deponent also furnishes a copy of a letter from defendant to him, dated July 6, 1889. The contents of that letter show that defendant cannot pay his debts, and that is about all that it shows. There is nothing indicating any intention to defraud or afay wrongful act.

The mere fact that defendant has transferred his farm to his wife does not show a fraudulent intent. ■ Connected with other circumstances, it might have much weight, but the circumstances are not shown. Whether the farm was incumbered or what was its value are matters not shown. When he made the transfer, and what was the consideration, we are not told.

We think there was not enough to sustain the attachment.

Order reversed, with ten dollars costs and printing disbursements and motion to vacate granted, with ten dollars costs. Such costs and disbursements to be offset against plaintiff’s .claim.

Landon, J., concurs.