Bump v. Daheny — 36 N.Y. St. Rep. 114

Majority

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A. Melvin Bump, Resp’t, v. Michael Daheny, App’lt.

(Supreme Court, General Term, Fourth Department,

Filed February 20, 1891.)

Headnote

1. Attachment—Affidavit.

An affidavit stating that defendant, although indebted to numerous persons in the neighborhood, was sending out of the county and disposing of his hops, hay and other property and is not, to the knowledge of deponent, paying any of said debts ; that he is preparing to move out of the county; that in answer to demands he has replied that he did not know when he could pay deponent and makes no effort to do so ; that he is rapidly putting his personal property out of his hands or converting the same into money and will soon be beyond the jurisdiction of a justice’s court, is insufficient to warrant the issue of an attachment.

2. Justice’s court—Attachment—Judgement.

Where the defendant has been personally served and appears generally, an error of the justice in refusing to vacate an attachment granted in the action will not vitiate a judgment rendered on the merits.

Appeal from a judgment of the county court of Madison county, affirming a justice’s judgment. On the 6th day of March, 1890, the justice issued a summons which was personally served on the defendant on that day by a constable by delivering to the defendant a copy, (see justice’s return folio 5). On the same day an affidavit was presented and an application made for an attachment, which affidavit was as follows : “ A. Melvin Bump, being duly sworn, deposes and says that he is the plaintiff in the above entitled action, and is entitled to recover of the defendant the sum of forty-eight, 72-100 dollars, with interest, on a certain demand assigned me by Thomas 0. Taylor of sixteen, 25-100 dollars, and interest from October 8th, 1889, over and above all counterclaims known to deponent, upon an account for goods, merchandise sold to the defendant by plaintiff, and the said Thomas O. Taylor, at the agreed price of sixteen, 25-100 dollars; that said goods of the assigned bill of Thomas O. Taylor were sold at various dates between and including April 26th, 1889, and October 8, 1889, no part of which has been paid, and the whole is now due; that the balance of said $48.72 viz., $30.47, is for feed and meal sold and delivered to defendant by plaintiff at Peterboro mills commencing on or about .1886, and ending September 30, 1889, no part of said $32.47 of which has been paid, and making due plaintiff at this date, with the assigned bill of Thomas O. Taylor, the sum of $48.72; that the said defendant has disposed of in part, and is about to dispose of the balance of all his property, and as deponent is informed and believes, with intent to defraud his creditors, and that defendant has removed property and is about to remove property from the county with a like intent; that the grounds of deponent’s belief are 'as follows, viz.:

That defendant has shipped out of the county large quantities of hay owned by him and is rapidly disposing of hay, hops and other property, although he is indebted to various and divers persons.in the neighborhood, including deponent, and is not, to the knowledge of deponent, paying any of said debts, and is making preparations to move out of the county with all his prop

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erty; that deponent has frequently asked defendant to pay said bill of $32.47, and defendant has only replied that he did not know when he would pay it, and made no promises or efforts to pay the same, although defendant has sufficient assets to pay the same; that defendant is rapidly putting his personal property out of his hands or converting the same into money and will soon be beyond the jurisdiction of a justice’s court, with all his property or money.

A. Melvin Bump.

Subscribed and sworn before me,)

March 6, 1890. j

H. Hiles Harrington,

Justice of the Peace.

On the 6th of March a constable, in virtue of the attachment, made a levy and an inventory of the property levied upon. The summons and the attachment were returnable on March 14th. On that day the defendant appeared especially and moved to vacate the attachment iqion the grounds there stated; the motion was overruled by the court and the return shows, viz.: “ Case called and parties appeared generally; ” plaintiff’s complaint was filed defendant’s answer was filed. The motion to vacate the attachment was renewed by the defendant, and the motion was denied.

The case was by consent of parties adjourned to the 19th of March. On that day parties again appeared, and the plaintiff to maintain his action gave evidence entirely sufficient to establish his right to recover on the merits. The justice rendered a judgment on the 22d of March, 1890, for $48.72 damages, and $6.00 costs against the defendant, which was affirmed by the county court.

John A. Johnson, for app’lt; Senn & Lownsherry, for resp’t.

Under § 2906 of the Code of Civil Procedure, the plaintiff in order to entitle himself to an attachment was required to show by affidavit to the satisfaction of the justice that the defendant “ had departed or is about to depart from the county where he last resided, with intent to defraud his creditors, or to avoid the service of a summons ; or keeps himself concealed, with the like intent.” We think the affidavit was insufficient. In Thompson v. Dater, 32 N. Y. State Rep., 363, it was said: “ Attachments are not to be granted on beliefs and suspicions. They operate to give an advantage to one creditor over others. And some wrongful act, or the evident intent to do some wrongful act, must be shown to justify them.” In Morris v. Talcott, 96 N. Y., 107 , it was said: “ A party, therefore, relying upon the establishment of a cause of action, or a right to a remedy against another, based upon the alleged commission of a fraud by such person, must show affirmatively facts and circumstances necessarily tend ■ ing to establish a probability of guilt," in order to maintain his claim.” Wo are therefore of the opinion that the justice committed an error in denying the several motions made to vacate the attachment. The question therefore arises, what is the effect upon the judgment rendered by the justice ? Assuming as we do that

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the justice ought to have granted the motion to vacate the attachment, still as the summons was personally served he had jurisdiction of the defendant and of the subject matter, and was authorized to hear the proofs and give judgment thereon. It is provided in § 2917 of the Code of Civil Procedure, viz.: “ Vacating-the warrant of attachment does not affect the jurisdiction of the justice to hear and determine the action, where the defendant has appeared generally in the action; or where the summons was personally served upon him.”

Had the justice vacated the attachment in virtue of the section we have just adverted to, the justice would still have had jurisdiction “tohear and determine the action,” as there had been a personal service of the summons. In § 2918 it is provided that where the summons has not been personally served, or where the defendant has not appeared and the property has been attached by virtue of a warrant which has not been vacated, the justice must proceed to hear and determine the action. In such cases the execution issued and the judgment so rendered “ must require the constable to satisfy it out of the property so attached, without containing a direction to satisfy it out of any other propeity.” We think the error committed by the justice in refusing to vacate , the attachment ought not under the circumstances to vitiate the judgment rendered upon the merits. We are, therefore, of the opinion that the county court being called upon to render a judgment on appeal without regard to technical errors or defects which do not affect the merits, should have pronounced a judgment declaring the attachment invalid. Section 3063 of the Code of Civ. Pro. That section provides that the county court “ may affirm or reverse the judgment of the justice, in whole or in part, and as to any or all of the parties, and for errors of law or of fact.” We are, therefore, of the opinion that the judgment of the county court should be modified so as to adjudge that the attachment issued by the justice be vacated, and that the judgment of the justice court on the merits should be affirmed.

Judgment of the county court modified so as to declare that the attachment issued by the justice is vacated, and as modified, affirmed, without costs to either party of the appeal in this court.

Martin and Merwin, JJ., concur.