American Horse Exchange, Ltd. v. Strauss — 57 N.Y. St. Rep. 791

Majority

p. 791

American Horse Exchange, Limited, Resp’t, v. Jacob Strauss et al., App’lts.

(Supreme Court, General Term, First Department,

Filed January 12, 1894.)

Headnote

1. Attachment—Inconsistent grounds.

When two inconsistent grounds are stated, and the facts cannot establish both, the attachment will be vacated.

5. Same—Affidavit.

An affidavit, which alleges only conclusions of the affiant, but does not set up the facts on which such conclusions rest, is insufficient.

Appeal from an order denying a motion to vacate an attachment.

The allegations in plaintiff’s affidavit in regard to the fraudulent actions on the part of the defendants are as follows :

And this deponent further says that the defendants, Jacob Strauss and Max Hamburger, are natural persons, and that they have removed, and are about to remove, property from the state, with intent to defraud their creditors, and have assigned and disposed of, and secreted, and are about to assign, dispose of, and secrete, property with the like intent; and deponent further says that the facts in regard to this allegation are that the said defendants are the owners of divers horses numbering in all about fourteen, which horses are the same horses which have been kept by

p. 792

the plaintiff, as hereinabove mentioned and set forth, and for the keep and care of which the aforesaid sum of $1,686 is due as aforesaid; and that the said defendants surreptitiously removed, from time to time, all the said horses from the stables of the plaintiff, while the plaintiff had a lien upon the said horses for their keep, and having recently advertised the same for sale in the public papers, in none of which is the name of any person given as. owner of the horses, and in one or more of which papers the said horses are mentioned as being horses “formerly the property of Messrs. Jacob Strauss & Co.,” the said defendants conducting business under that name, and the said defendants now claiming,., or causing it to be understood, that the said horses are now owned by a brother-in-law of one of the defendants ; and that from these facts, and investigations which deponent has made, he has ascertained, and now states, that the said defendants are about to sell and dispose of the said horses in such manner as to make the. public believe that that the same are not their property, but belong to some other person or persons, and so that they may receive the proceeds, thereof in a secret manner, and avoid the payment of the debts due from them to their creditors, including the aforesaid sum due to the plaintiff as aforesaid.

S. Feuchtwanger, for app’lt; F. B. Gaudier, for resp’t.

This motion is based upon various grounds,, only two of which it is necessary to consider. The first is that there are two grounds of attachment stated, each of which is inconsistent with the other, and the same facts could not establish both propositions. It is impossible for us to tell which ground the judge who granted the attachment considered to be established by the affidavits. In the next place, the allegations in the affidavit in regard to fraudulent action upon the part of the defendant are entirely conclusions of the affiant, no facts whatever being set up on which such conclusions rest. These facts must be set up, in order to enable the court to determine whether the conclusions derived by the affiant are well founded. The order should be reversed,, with $10 costs and disbursements, and the motion to vacate attachment granted, with $10 costs.