Boyd v. Miller

Headnote

Attachment—Affidavit.

The affidavits, in this case, were held to contain evidence from which the special term judge might fairly draw the inferences necessary to sustain an attachment issued on the ground that the defendants have assigned or disposed of, their property, with intent to defraud their creditors.

Appeal from an order, denying a motion to dissolve an attachment made by a judgment creditor of defendant.

The affidavit filed in support of the attachment is as follows:

Edgar 0. Schermerhorn, being duly sworn, deposes and says that he is one of the plaintiffs in this action; that summons has been issued herein ; that this action is to recover a sum of money only, as damages, for the cause hereinafter stated, by the above named plaintiffs against the above-named defendants. Deponent further says that a cause of action exists in favor of said plaintiffs against said defendants, for which said action is commenced, or is about to be, and that the amount of the plaintiffs’ claim in said action, and plaintiff is entitled to recover thereon the sum of $629.78, and interest from the commencement of this action, over and above all counterclaims known to the plaintiffs, and that the grounds of said claim and cause of action are as follows : The plaintiffs are coal merchants engaged in business in the cit\r of New York, under the firm name of A. S. Swords & Co., and the defendants are copartners engaged in business at Highland Falls, Orange county, New York, under the firm name of Joseph H. Miller & Co.; that between July 1, 1894, and January 15, 1895, the plaintiffs sold and delivered to the defendants a large quantity of coal, of the value and for the sum of $629.78, which amount the defendants agreed to pay therefor, and no part thereof has been paid, and the same is now due and owing and unpaid to the plaintiffs. This deponent further says that on or about the 24th day of January, 1895, one E. 0. Carpenter called on deponent’s firm, in the city of New York, and then and there stated to deponent’s said firm that he represented the defendants herein, and was acting for them, and that he wished to offer the plaintiffs, for and in behalf of said defendants, twenty-five cents on the dollar in full settlement of their claim against defendants ; that said Carpenter represented to deponent’s firm that the defendants had executed to one Frances A. JMiller, a sister of the defendants, a bill of sale of all their stock and interest in their business, including book accounts, for the sum of $1,000, that "the liabilities of the defendants amounted to $3,500, and that the said sum of $1,000 was all the money which the defendants had with which to pay their said liabilities; that on the 25th day of January, 1895, deponent went to Highland Falls, aforesaid, and saw the said Frances A. Miller ; that said Frances A. Miller, in response to interrogatories of deponent, the said Francis A. Miller told this deponent that, although she had loaned money to the defendants, she had taken no security for the same, and that no bill of sale had been executed to her by the defendants, as stated by said Carpenter; that immediately thereafter he called upon the defendant Joseph A. Miller, who is the active partner of the defendants, and asked him if he had authorized the said Carpenter to make the statements above referred to to deponent’s firm; that said Miller replied that he had, and he also said that he had sold the business of the defendants, including the stock, fixtures and book accounts, to his sister, the said Francis A. Miller; that deponent also visited Highland Falls this day, and again saw Joseph H. Miller ; that said Miller told deponent that the twenty-five cents offered by said Carpenter was the best he could do; that deponent also saw the said Frances A. Miller this

day, and that she then told deponent that the money she had loaned her brother was $1,000, and that she had loaned it to the defendants about a year ago; that, on both occasions that the deponent visited Higliland Falls, the place of business of the defendants was not in the care or control of the said Frances A. Miller, but was in the care of the defendants, or of one of them, and that there was no appearance of any change of possession of the said business; that the plaintiffs are entitled to recover the sum above-stated, over and above all counterclaims known to the plaintiffs. The plaintiffs, therefore, hereby apply for a warrant of attachment against the property of the said defendants, according to the Code of Procedure, as a security for the satisfaction of such judgment as the plaintiffs may obtain against the defendants in this action, on the ground that the defendants have assigned, disposed of, or secreted, or are about to assign, dispose of, or secrete, their property, with the intent to defraud their creditors, including these plaintiffs.