Smith, Perkins & Co. v. Wilson — 58 N.Y. St. Rep. 245

Majority

p. 245

Smith, Perkins and Company, Resp’t, v. Milon F. Wilson et al., App’lts.

(Supreme Court, General Term, Fifth Department,

Filed April, 1894)

Headnote

Attachment—Recital of grounds.

A recital in the attachment that “the said defendants have assigned, disposed of or secreted their property with intent to defraud their creditors,” sufficiently satisfies the requirements of § 641-of the Code in this respect.

Appeal from order of county judge of Monroe county denying motion to set aside a warrant of attachment.

H. H. Woodward, for app’lts; W. W. Webb, for resp’t.

The objections made to the warrant of attachment are (1) That is fails to state the grounds upon which it was issued, (2) That the affidavits are insufficient to authorize or support it.

p. 246

The recital in the attachment of the grounds is that “the said defendants have assigned, disposed of or secreted their property with intent to defraud their creditors.” It is said that this alternative statement does not specify which of the causes so recited is the one upon which the process was issued and therefore the requirement of the statute in that respect is not observed. Code Civ. Pro., § 641.

This has been the subject of consideration in several cases since the enactment of the provisions of that section. Rothschild v. Mooney, 36 St. Rep., 565 ; Dintruff v. Tuthill, 62 Hun, 591 ; 43 St. Rep., 704 ; Garson v. Brumberg, 75 Hun, 336 ; 58 St. Rep., 209 ; 26 N. Y. Supp. 1003 ; Cronin v. Crooks, 57 St. Rep., 475 ; 27 N. Y. Supp. 822 .

In none of those cases is it determined that a recital like the one in question is insufficient.

Amongst the grounds specified as essential to an attachment are those that the defendant has removed, or is about to remove property from the 'State with intent to defraud his creditors; or has assigned, disposed of, or secreted, or is about to assign, dispose of or secrete property, with the like intent.” Code Civ. Pro., § 636. In the Cronin case the recital in the attachment was that the defendant “has assigned and disposed of, or is about to assign or dispose of her property with intent to defraud her creditors.” This disjunctive union of the two grounds was held bad, and not such as to support the attachment. But it was there remarked that a statement that the defendant had assigned or disposed of property with intent to defraud her creditors would have been a compliance with the statute, as would also have been the recital that she was about to assign, secrete or dispose of her property with such intent.

In the Rothchild case an attachment having a recital similar to that in the Oi'onin case was sustained.

In Dintruff v. Tuthill the recital was that the defendant had removed or was about to remove property from the state with intent to defraud creditors or had assigned, disposed of or secreted, or was about to assign, dispose of or secrete his property with the like intent. This was a statement in the alternative of distinct classes of the causes for which a warrant of attachment could be granted; and it was held that by thus disjunctively reciting them, neither was designated as ground upon which it was issued and for that reason there was a failare to comply with the requirement of § 641 before mentioned.

In the ¡^resent case the recital is of one class only of the grounds as they are arranged in § 636; and the same state of facts presented by affadavits may consistently in supposible cases be applicable to and premit inferences in support of each of the causes so recited. And within the rule stated in Carson v. Brumberg the statement of the grounds must be deemed efficiently made in the attachment.

A careful examination of the affidavits leads to the conclusion that they are sufficient to support it. The order should therefore be affirmed. All concur.