Mc Entee v. Aris — 50 N.Y. St. Rep. 541

Majority

p. 541

Eugene Mc Entee, Jr., Ex'r, App'lt, v. William B. Aris et al., Resp'ts.

(Supreme Court, General Term, Fifth Department,

Filed January 18, 1893.)

Headnote

Attachment—Affidavit.

An attachment was granted upon the ground that defendants were , removing their property from the state to defraud creditors. The affidavits used were made by plaintiff’s agent and one B. and alleged that affiants had visited the store of defendants two days before and found them engaged in packing their goods with a view of shipping them to Massachusetts, and that they announced their intention of closing their business; that the packing was done by salesmen and shipping clerks, instead of by the latter as usual; one affiant asked to see one of the defendants, was informed that he was not in, but when he told the clerk he wanted to see him about renting property, he was immediately found, and told affiant that he wanted

p. 542

to sell the property as he intended to leave the city. The plaintiff’s debt was only $287, while defendants’ stock was large and nothing appeared tending to show that they were embarrassed. No reason was given why an affidavit was not made by plaintiff, and the agent did not swear that he did not know of any counterclaim. Held, that the attachment was properly vacated.

Appeal from an order of the special county judge of Monroe county, setting aside and vacating a warrant of attachment granted by him against the property of the defendants on the papers upon which the order was granted.

C. D. Eiehel, for app’lt;

Horace Me Quire, for resp’ts.

The attachment was granted upon the affidavit of the plaintiffs agent, Eugene McEntee, Junior, and the affidavit of Charles H. Barrett. The material allegations of the affidavits are that the defendants were indebted to the plaintiff in the sum of two hundred and eighty-seven and ten one-hundredths dollars for goods sold to them by the plaintiff; that they had neglected and refused to pay the debt; that the defendants had been engaged for three months prior to the making of the application for the attachment in the business of jobbers in boots and shoes in the city of Rochester ; that the affiants had visited the place of business of the defendants a day or two before making their affidavits, and found them engaged in packing their stock of goods with the view of shipping the same to the state of Massachusetts, and that the defendants announced their intention of closing their business in the city of Rochester; that the packing was being done by salesmen and shipping clerks, while such work was ordinarily done by shipping clerks only. The affiant Barrett stated that he called at the defendants’ place of business two days before making his affidavit, and inquired of one of the employees of the defendants for the defendant Aris, and was informed by the employee that Aris was not in, and that he did not know when he would be in. That he informed the employee that he wished to see Mr. Aris personally about renting some property of him. The employee then said he thought he could find Mr. Aris, and went out and remained about one minute, when Mr. Aris appeared, and upon Mr. Barrett stating to him what his business was, Mr. Aris stated that he was very anxious to sell the property, for the reason that he intended to leave the city. The affidavits abound in inferences, from what the affiants saw and heard, that the defendants were engaged in removing their property from the state with the intent to defraud their creditors. The affidavits failed to disclose from whom they derived their information, or what their informants told them. We do not think the inferences were justified from the facts stated in the affidavits. From the description given by the affiants of the manner of packing the goods, the defendants evidently had a stock of considerable value. The entire indebtedness of the firm, so far as appears from the affidavits, was the amount of the plaintiff’s claim, $287.10. Aris, it appears from Barrett’s affidavit, was the owner of other property besides the stock of goods. It is hardly conceivable that a firm having such a stock would pack and ship it out of the state for the purpose of

p. 543

avoiding the payment of so small an indebtedness. There is nothing in the affidavits tending to show that the firm was embarrassed or had any occasion to ship their goods away for the purpose of avoiding the payment of debts.

The facts stated in the affidavits are entirely consistent with innocent intentions on the part of the defendants in removing their stock of goods. The affidavits were also defective in failing to show that the plaintiff was entitled to recover the sum stated therein over and above all counterclaims known to him. The agent does swear that he did not know of any counterclaims. No reason is given why an affidavit stating that fact was not made by the plaintiff. A counterclaim for the full amount of the plaintiff’s demand might have existed within the knowledge of the plaintiff for aught that appears in the affidavits. They did not justify the issuing of the attachment, and it was properly vacated.

The order appealed from should be affirmed, with ten dollars costs, and disbursements of the appeal.

Dwight, P. J., and Macomber, J., concur.