Strauss v. Vogt — 54 N.Y. St. Rep. 142

Majority

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Ferdinand A. Strauss, Resp’t, v. John Henry Vogt, App’lt.

(New York Superior Court, General Term,

Filed July 3, 1893.)

Headnote

Attachment—Fbaudulent disposal oe goods.

Proof that defendant at various times while purchasing goods represented himself as doing a good business; that his profits ought not to be less-than one-third, and that he had not had any loss for a long time, and that within three weeks after making such statement he called a meeting of creditors and his attorney stated that he was only able to pay twenty-five per cent, of his debts, is sufficient to sustain plaintiff’s right to an attachment on the ground that defendant had assigned, disposed of or secreted his goods, or was about to do so, with intent to defraud his creditors.

Appeal from order denying defendant’s motion to vacate the attachment granted against defendant’s property.

The affidavits upon which the attachment was granted show the following facts:

The defendant has been, for a number of years, engaged as a manufacturer of braids and trimmings at Ho. 270 Bowery in the city of Hew York. In October, 1892, the defendant told plaintiff that he had a large and valuable stock of goods and valuable ma

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chinery ; that he was doing very well, and doing his share of business. That he had some new specialties and expected to make plenty of money the coming season. In January, 1892, defendant told plaintiff that his business was “ fairly good ” and that he expected a good spring season. At that time the defendant purchased of the plaintiff a large bill of goods, the largest in any month for a long time.

During the month of February the defendant frequently called at the place of business of the plaintiff, and on most every occasion the business of the defendant was discussed and defendant stated that he was doing fairly good and as well as could be expected.

The defendant has expensive machinery which he said was paid for out of the profits of his business.

The defendant has frequently stated to plaintiff that the profits in his business ought never to be less than one-third.

On March 7, 1893, defendant met plaintiff at the-Merchants & Traders’ Bank, at which time defendant said to plaintiff that he was doing his share of business and was doing as well as any one else in his line. That he had sustained no loss of any kind in a long time. And in answer to a remark of the plaintiff that the braid people were getting rich, defendant said that he had his share of the business and was not poor by any means.

The defendant continued to purchase merchandise of the plaintiff up to and including the 21st day of March.

Such being the condition of defendant’s affairs, on the 23d day of March, 1893, he sent to his creditors a notice of a meeting of his creditors to determine what action should be taken in his affairs.

Thereupon Charles A. Hess, as counsel for the plaintiff, called upon Eugene H Pomeroy, Esq., the attorney for the defendant, and was informed by Mr. Pomeroy that the defendant had been in a bad way financially for a year or more, and that he was only able to pay twenty per cent, or twenty-five per cent, of his indebtedness.

Mr. Pomeroy also informed Mr. Hess that the liabilities of the defendant were about $31,000. That his assets were about $20,000 or $21,000, which were made up of book accounts considered good, $12,000 ; cash on hand, $3,000 ; merchandise on hand, $3,-000 ; and machinery, $3,000.

The following is the opinion of the court below:

The affidavit of Egeln, the former bookkeeper of the defendant, makes out a strong case for the plaintiff. The defendant’s stock in July, 1892, was estimated at from $28,000 to $30,000; collectible book accounts, $8,000 to $12,000, and machinery at cost price, $20,000.

Egeln swears that, from his knowledge and observation, the assets were about the same on March 1, 1893. He asserts that the defendant’s business was fairly good, while Strauss testifies it was prosperous. The latter also states that late in March the defendant told him that his stock was worth $3,000 only, and that this is all the creditors would get in that line. The question naturally suggests itself, what has become of the difference between

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$28,000 and $3,‘000, the missing $25,000 worth of stock is unaccounted for, and its disappearance unexplained.

Eugene H. Pomeroy, for app’lt; W. J. Townsend, for resp’t.

Evidence and inferences to be .drawn therefrom sustain the plaintiff’s right to attachment, and the motion to vacate it will be denied, with costs. See 11 Abb. Pr., 283 ; 8 Abb., N. S., 131.

The affidavits upon which the attachment was granted present a sufficient case for its support on the ground that the defendant has assigned, disposed of or secreted, or is about to assign, dispose of or secrete, his property with intent to defraud his creditors.

The papers submitted by both parties on the motion to vacate present a sharp conflict as to the most material facts. The learned judge who heard the motion determined the issues thus raised in favor of the plaintiff, and upon a careful review of the whole case 1 am unable to say that he erred in his decision.

True, in the course of his opinion, he erroneously assumed that some witness had testified that the defendant had admitted that late in March his stock was worth $3,000 only, but independently of that there is sufficient evidence left upon which, together with the inferences to be drawn therefrom, the plaintiff’s right to the attachment may be sustained.

The order should be affirmed, with ten dollars costs and disbursements.

Gildersleeve, J., concurs.