Hallenbeck v. Coenen — 34 N.Y. St. Rep. 689

Majority

p. 689

John W. Hallenbeck et al., Resp’ts, v. Gerhard Coenen et al., App’lts.

(City Court of New York,

General Term,

Filed December 24, 1890.)

Headnote

Attachment—Affidavit for—Intent to transfer property.

The mere fact that one of the defendants said that defendants thought they would have to turn over their business, that creditors might be left and that they would have to protect themselves, does not prove that they intended to transfer their property to cheat and defraud creditors.

Appeal from order denying motion to vacate attachment.

L. Baser, for app’lts; J. M. Me Gee, for resp’ts.

The attachment is founded on subd. 5 of § 3169 of the Code, which permits of that remedy “where the defendant

p. 690

has removed, or is about to remove, property from that city (New York) with intent to defraud his creditors, or that he has assigned, disposed of, or secreted, or is about to assign, dispose of, or secrete property with like intent.” The affidavit shows that one of the defendants (which does not appear) said the defendants could not pay anything,'that they thoitght they would have to turn over their business to a friend down town and all creditors would get .left; that one Freece who had obtained judgment would get-nothing; that when they were sued it ruined their credit, and npw they would have to protect themselves. The proofs are insufficient. The fact that one of the defendants said the defendants thought they would have to turn over their business, that creditors might be left, and that they would have to protect themselves, does not prove that the defendants intended to transfer their property to cheat and defraud creditors. Skiff v. Stewart, 39 How. Pr., 385 . It miay lead to the inference that the defendants intended something wrong, but this does not affirmatively prove fraud, which must be proved and cannot be presumed. See Stringfield v. Fields, 13 Daly, 171 . It does not appear what the defendants’ property consisted of, nor what it was worth, nor that anything was done to the injury of the plain tiffs.

It follows that the order appealed from must be reversed, with costs to abide the event of the action.

McAdam, Oh. J., Ehrlich and Van Wyck, JJ., concur.