Weill v. Malone — 39 N.Y. St. Rep. 899

p. 899

Elie Weill et al., App’lts, v. Joseph Malone et al., Resp’ts.

(Supreme Court, General Term, Second Department,

Filed July 2, 1891.)

Headnote

Attachment—Fraud.

Plaintiffs delivered to defendants certain steel, to be paid for as used. After a fire on defendants’ premises some of the steel was missing. It was shown that after the fire defendants sold some damaged steel, hut there was some proof that this was not the steel in question. Held., that an attachment granted in an action for conversion of the steel would not be vacated.

(Pratt, J., dissents.)

Appeal from order vacating an attachment obtained by plaintiffs in an action for conversion.

The plaintiffs shipped to defendants ninety-two casks of steel, to be paid for as defendants used them. A fire occurred at defendants’ factory, and an agreement was then made that they should assign their policies of insurance to plaintiffs and divide the damaged steel. It was found that fifty-two casks were missing. This action was then brought and an attachment obtained on the ground that defendants were selling such damaged steel with intent to defraud plaintiffs.

p. 900

Eugene G. Kremer (Frederic S. Barnum, of counsel), for app’Its ; James C. Church, for resp’ts.

—The plaintiffs delivered to the defendants ninety-two casks of steel. On the 26th of April, 1890, the defendants’ premises were burned. There were fifty-two casks of the steel missing after the fire. There is proof tending to show that some damaged steel was sold by defendants in May, after the fire. There is proof tending to show that this was not the steel in question. Even upon this point the case is not sufficiently clear to vacate the attachment. The conversion, in any case, remains proven. Assuming a conversion of fifty-two casks of steel, the statement that the defendants had disposed of the same with intent to defraud their creditor presumptively should be held good until the trial.

The order vacating the attachment should be reversed, with costs and disbursements.

Dykman, J,, concurs.

—This motion only involves questions of fact, and an examination -of the affidavits satisfies us that the matter was correctly decided below.

The evidence failed to show with sufficient certainty that the defendants had disposed of any of their 'property with ' intent to defraud their creditors, and whatever there was alleged by plaintiff from which such an inference might be drawn was fully met and denied or explained by the defendants.

Order affirmed, with costs.