Fitch v. McMahon — 4 N.Y. St. Rep. 305

Majority

p. 305

Benjamin Fitch, Resp’t, v. Patrick McMahon, App’lt.^[1]

(Court of Appeals,

Filed December 17, 1886.)

Headnote

1 Arrest—Order of—What sufficient ground for under Code Civil Pro , § 550, sued. 1.

This action was brought to replevin some goods alleged to have been obtamed by fraud, and defendant was arrested for a fraudulent disposition or concealment thereof, under Code Civil Procedure, section 550, subdivision 1. The affidavits of the plaintiff and others on which the order of arrest was granted showed that his firm, during September and October, 1885, sold the defendant the goods in question upon his representation that he was doing a good business That twenty-three days after the last sale defendant made a fraudulent assignment to one of his sons, with fraudulent preferences in favor of a non-resident son of over $4,000; that his assets amounted to $7,000 and liabilities to $14,000. Reid, that the fraud in the purchase of the goods justified the further inference that the inability of the sheriff to find the goods and take them on the requisition was in consequence of a fraudulent disposition or concealment of the .goods by the "defendant in pursuance of his original fraud, with the intent of depriving the true owner of the benefit thereof. That there was a case . presented by the affidavits justifying the granting of the order of arrest.

p. 306

2. Same—Pleading—“Wrongful taking” does not imply “fraudulent TAKING.”

The allegation in the complaint that the defendant “ wrongfully took the chattels for which the action was brought did not necessarily imply a, fraudulent taking, and the right to arrest depended upon an extrinsic: fact to be shown, but, notwithstanding such a defect in the complaint, the-order of arrest will be granted when the evidence afforded by the affidavits in support of the motion tends to show an extrinsic fact amounting to-a fraud.

The action is in replevin brought to recover certain goods, chattels and merchandise alleged to have been fraudulently obtained by the defendant from the plaintiff’s; firm and five other creditors, who prior to the commencement of this action had assigned their claims to the plaintiff, who brought the action. The sheriff of the county of Kings, pursuant to the writ of replevin, seized a portion of the personal property mentioned in the writ, and returned, that the remaining portion of said property had been assigned, concealed, removed or disposed of, so that he: could not find or take the same. On this return and affidavits of plaintiff and others that the case was within Code Civil Procedure, N. Y., section 550, subdivision 1, and that the ground of arrest was that the defendant had concealed, removed or disposed of the goods which plaintiff sought to recover, Justice Cullen, of the supreme court, Kings county, issued an order for the defendant’s arrest. Defendant then moved, before the special term, for an order vacating the order of arrest, on the papers upon, which such order was granted, which motion was denied. The memorandum of Justice Bartlett denying the motion to vacate was as follows: “Assuming that there are five-distinct causes of action attempted to be set out in the complaint, the objections based on the affidavit of the plaintiff tend only to show that he has really no cause of action as. far as the claim of his firm is concerned. The insufficiency of this cause of action, however, does not affect the validity of the order of arrest, though it may afford a reason for-reducing the bail. Motion denied, with costs to abide-event.”

From this order, and from each part thereof reciting the reading of papers on which the order of arrest was not granted, defendant appealed to the general term, where-the order of the special term was in all things affirmed. See 3 N. Y. State Rep., 147. From this order the defendant appeals.

Wm. J. Gaynor, for app’lt; Abram Kling, for resp’t.

The ground of arrest, as stated in the order, is that specified in subdivision 1 of section 550 of the Code of Civil Procedure. The affidavits tended to establish

p. 307

that the goods purchased by the defendant from Benjamin Fitch & Oo. were obtained by fraud. The affidavit of Fitch shows that between the first of September and the twenty-first of October, 1885, his firm sold to the defendant goods and merchandise of the value and kind alleged in the first cause of action set out in the complaint, upon his representation that he was doing a good business, which the affiant alleges was untrue, “'which appears _by the affidavits annexed,” and to which he refers. It'appears by reference to their affidavits that on the thirteenth of November, 1885, twenty-three days after the last sale by Fitch & Co., the defendant made a general assignment to one of his sons, with a fraudulent preference, in favor of a son residing in England, of $4,220, and that his assets, at the time of his assignment, were $7,212.25, and his Habilities about $14,308.17. It is a reasonable inference from these facts that the defendant’s representations to Fitch & Co. that he was doing a good business, upon the faith of which Fitch & Co. sold the goods, were false.

The fraud in the purchase of the goods justified the further inference that the inability of the sheriff to find the goods, and take them on the requisition, was in consequence of a fraudulent disposition or concealment of the goods by the defendant, in pursuance of his original fraud, with intent that they should not be taken, and to deprive the true owner of the benefit thereof. Barnett v. Selling, 70 N. Y., 492 .

The affidavits presented a case, justifying the judge granting the order in deciding that a cause of arrest, under subdivision 1, section 550, was made out. The evidence presented to the judge was not as full and satisfactory as might be desired, but there was enough to confer jurisdiction to grant the order. We assent to the contention of the defendant’s attorney that, the allegation in the complaint, that the defendant “wrongfully took” the chattels for which the action was brought did not necessarily imply a fraudulent taking, and that the right to arrest depended upon an extrinsic fact to be. shown. But we think the requisite extrinsic fact was shown, or, at least, there was evidence tending to show it, which gave the judge jurisdiction.

The order should be affirmed.

All concur.