Hirsh v. Van Der Perren — 32 N.Y. St. Rep. 850

Majority

p. 850

Morris M. Hirsh, as Sole Survivor, Resp’t, v. Ferdinand Van Der Perren, App’lt.

(Supreme Court, General Term, First Department

Filed June 6, 1890.)

Headnote

Abeest — Affidavit fob.

Affidavits stating that defendant procured from plaintiffs’ agent a bill of lading on an agreement to collect the money on the same and pay it over to plaintiff immediately: that he had admitted such statements to be true, and that he admitted having collected the money and appropriated it to his own use, are sufficient, on which to base an order of arrest.

Appeal from an order of the special term denying the defendant’s motion to vacate an order of arrest.

Theodore S. Friend, for app’lt; Felix Jellinik, for resp’t.

The complaint alleges that' the claim set up is for moneys received by the defendant as agent for the plaintiff in a fiduciary capacity, and the affidavits show that such allegation was properly made.

The defendant requested the plaintiff’s agent having possession of the same to deliver to him a bill of lading, which was done upon the express promise and agreement that he would, as the agent of the plaintiff, collect the money due from the vendees of the merchandise represented by it and pay over the same to the plaintiff immediately. This appears from a statement of these facts on information and belief, but to which is added a declaration by the affiant that the defendant admitted it to be true.' And further it appears by an affidavit of another deponent that the defendant admitted his collection of the money and his personal appropriation of it.

There are no arguments within the whole realm of ingenuity that can overwhelm these elements.

p. 851

They contain all that is necessary to justify an order of arrest, and need only be stated to make that proposition unquestionable.

The order appealed from must, therefore, be affirmed, with ten dollars costs and the disbursements of the appeal.

Van Brunt, P. J., and Daniels, J., concur.