Rothschild v. Mooney

Headnote

1. Attachment—Affidavit.

The use of the disjunctive “or” instead of the conjuction “and” in an affidavit for an attachment on the ground that defendant has disposed and is about to dispose of her property, is a mere irregularity and not fatal to the attachment.

2. Same.

An affidavit stating that defendant, after repeated demands for payment, although admitting her ability, refused to pay and refused to give information as to her business; and that, although she denied having made sales to her relatives, her employees were seen taking goods in a suspicious manner from the store and leaving them with such relatives, makes a prima fade case for an attachment, and the same should not be set aside on a motion made simply on the papers on which it was granted.

Appeal from order denying motion to vacate a warrant of attachment The following is the opinion at special term:

O’Brien, J. Upon this motion to vacate the warrant of attachment, two grounds are relied upon. First, the alleged irregularity of the warrant of attachment. The warrant recites as a ground for attachment that the defendant has disposed, or is about to dispose of, property, etc. Upon the affidavits, if the conjunction “ and ” were used, instead of the disjunctive “ or,” the warrant would properly recite the true grounds of the attachment. The

affidavits tend to show that the defendant has disposed of her property, and one portion of the recital in the warrant, therefore, truly states the ground. This, however, is but a mere irregularity, which can be cured, and is not fatal to the attachment. The second ground relied upon is that the affidavits used in support of the attachment are insufficient

In determining this question, the defendant having moved upon the papers alone upon which the warrant was granted, the statements in the affidavits are, for the purposes of the motion, to be taken as true, and if they establish & prima facie case, sufficient to support the warrant in the absence of any satisfactory answer or explanation, it should not be set. aside. Here the facts show that, after repeated-demands for the payment of the claim, the defendant, while admitting her ability, refused to pay. She, also, through her agents, admitted the embarrassment of the firm, and, upon being asked for particulars as to the business, refused all information as to stock on hand, and generally as to the assets of the business. The facts, however, which have the most direct bearing upon the right of the plaintiffs to this attachment result from the statements in the affidavits that, although the defendant stated that no sales were made to D. Mooney and A. Wuldman, the former the brother-in-law of the defendant, and the latter the brother-in-law of her husband, both of whom were engaged in the same line of business, yet it is made to appear that persons in the employ of defendant were seen taking goods in a suspicious manner from the store of the defendant and leaving them with the brothers-in-law above named. Upon the facts as presented, I am of the opinion, reached after some hesitation, that the plaintiffs make out a prima fade case, and the motion to vacate the attachment should be denied.