Blakeslee v. Cattelain — 67 N.Y. St. Rep. 632

Majority

p. 632

Charles L. Blakeslee, Resp’t, v. Jean B. Cattelain et al., App’lts.

(Supreme Court, General Term, Third Department,

Filed May 14, 1895.)

Headnote

Attachment — Affidavit—Sufficiency.

An affidavit for an attachment, which states that the defendants were about to-receive a sum of money and to place it so that it could not he found, and that their agent had declared that they would do this, is sufficient to call upon the judg-e, to whom the application is made, to exercise his judgment as to its sufficiency, and his conclusion is binding upon the-appellate court.

p. 633

Appeal from an order denying a motion to vacate on attachment on the application of a party acquiring an interest after the levy.

Paul E De Fere,for app’lt; George L. Stedman (George W. Stedman, of counsel), for resp’t.

The affidavit upon which the attachment was granted, after setting forth the usual facts as to the cause of action, stated:

“That the defendants are about to remove their property from the state, or secrete property with intent to defraud their creditors; that a sum of money is to be paid to the defendants, and they are arranging to place the same so that the same cannot be found, that their agent has so declared, and this deponent knows that they are busy to-day to accomplish this.”

The property attached was a deposit of $2,000, which became due to the defendants upon the determination of an action in which one Buck was plaintiff and the defendants herein was defendants. The attachment was issued September 20th and levied September 21st, the attached property being then in the custody of the clerk of Rockland county. On the 26th day of September an assignment of the judgment against Buck was made by Oscar Oattelain for himsetf and the other defendants, the defendants constituting the firm of J. B. Oattelain & Sons. The assignment was to Nester Oattelain, a son of one of the defendants, and brother of others, for a consideration of $100, expressed in the assignment. The motion to vacate the attachment was made upon the papers upon which the attachment was issued, and additional affidavits, showing the assignment and proceedings in the care of Buch v„ Oattelain, and some proceedings had subsequent to the levying of the attachment. There was no defense interposed in this action, and judgment had been entered by default before the hearing of the application by the county judge. The appearance by the attorney states that he appears for Wester Oattelain as a lienor subsequent to the granting of the attachment, and the notice of motion is signed, “Attorney for Wester Oattelain, subsequent lienor.” The affidavit of Wester Oattelain states that he is the sole owner of the judgment against Buck, and the defendants covenant in the assignment that the sum of $1,270 is due upon the said judgment.

I think the order of the county judge should be affirmed. It may be that, had the application been made to this court, or to either of the members thereof, more evidence of the facts with regard to the disposition of the property by the defendanis would have been required ; and it may be that an attachment would have been refused upon that affidavit; yet we cannot say that there was not sufficient to give the county judge jurisdiction of the matter, and to permit him to pass upon the question of the sufficiency of the affidavits. We must assume that the facts therein stated are true, viz., that the defendants were about to receive a sum of money, and to place it so that it could not be found, and that their agent had

p. 634

declared that they w.ould do this, Now, it cannot be said that, if the agent of the defendants had made such a declaration, it is not some evidence of the facts stated ; and while, perhaps", it is slight, and .not as convincing as might be required under some circumstances, yet it was sufficient to call upon the county judge, or whoever passed upon the application in the first instance, to exercise his judgment as to its sufficiency, and his conclusion thereon .should be binding on this court. We ought not to interfere with that judgment, unless it appears that he acted under a misapprehension of the facts, or without jurisdiction to pass upon the facts. The evidence on the part of the defendants on the application to set aside the order shows that for the consideration of .$100 an assignment was made to the son of one of the defendants, and a brother of the others, of a claim upon which the defendants themselves covenanted there was $1,270 due, and to secure which a -deposit of $2,000 had been made. This, of itself, appearing from the moving papers before the county judge, in connection with the affidavit of the plaintiffs, would seem to be sufficient to warrant the county judge in denying the application, for lie would have the right to consider whatever was before him at that time; and it would appear almost conclusively that not only bad the intention to transfer the money beyond the reach of creditors existed at the time the warrant of attachment issued, but that, in furtherance of tfyat design, the assignment to the son and brother for a nominal consideration had been actually made before the motion herein to vacate the attachment.' Standing without explanation, I think it must be held that the papers show a design to place the moneys deposited as security for the judgment in the Buck Case beyond the reach of the plaintiffs, creditors of the defendants, who have since obtained judgment for their claim. While every care ■should be taken to see that the provisions of the statute are carried out, and that the property of the indvidual should be secure, and his right to its enjoyment amply protected, yet the court ought not to be eager to prevent the enforcement of concededly legal and just claims of creditors in order to aid persons who voluntarily take the least questionable assignments of claims, of the character ■of which they must be charged with having notice, and particularly when such questionable transactions are between members of the same family.

The order of the county judge should be affirmed, wiijh $10 costs and disbursements.