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Stone v. Pratt

70 N.Y. St. Rep. 131 Court N.Y. Gen. Term Decision date 1895-10-16 English

Delivered by Lewis, J.

Contents

Majority

p. 131
Marion E. Stone, App’lt, v. Alvah D. Pratt, Resp’t.
(Supreme Court, General Term, Fifth Department,
Filed October 16, 1895.)

Headnote

Attachment—Warrant—Amendment.
The court may correct an indvertent error in a warrant of attachment in stating, in the alternative, grounds which actually existed.
Appeal from an order, denying a motion to amend a warrant of attachment and granting defendant’s motion to vacate the attachment
Thomas Raines, for app’lt; Clarence E Shuster, for resp’t.

A warrant of attachment was granted in this action on the 18th day of July, 1895. The grounds for the attachment were recited therein to be “that said 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 attachment was executed, and the defendant moved to vacate and set it aside upon the ground first, of the insufficiency of the affidavits upon which the warrant was granted, and for the further reason that there was a failure to recite therein any ground for the attachment. The defendant’s motion was based upon the original papers on which the attachment was granted. Plaintiff thereupon obtained an order for the defendant to show cause why the attachment should not be amended by substituting the word “and" for “or," in the clause in the attachment in which the grounds were recited, so that it would read “that said defendant has assigned, disposed of, or secreted, and is about to assign,” etc. The motions, by consent of parties, were heard together. The special term justice held that the papers upon which the attachment was issued were sufficient to warrant its issue, but denied the plaintiff’s motion to amend, for the reason that he concluded that he did not possess the power to grant the motion. Defendant’s motion to vacate the attachment was granted.

It was quite satisfactorily shown by the affidavits upon which the attachment was issued that the defendant had been faudulently disposing of a portion of his property, with the intent to defraud his creditors, and that he was about to assign, dispose of, or secrete the balance of it, with a like intent. The papers made a very meritorious case for the attachment, but in preparing it, by inadvertence, plaintiff’s attorney used the word “or,” instead of “and.” It is provided by section 641 of the Code of Civil Procedure that a warrant of attachment must be subscribed by the judge and the

p. 132
plaintiff’s attorney, and must briefly recite the ground for the attachment. The only question we are required to consider is whether the provision requiring the statement of the ground of the attachment is so far mandatory that the court was powerless to correct the inadvertent error. It was not a case of a failure to state the ground for the reason that none in fact existed; for, as stated, the two .reasons which the draftsmen intended "to state in fact existed. The attachment, under our Code, is not an original process by which an action is commenced. It is a mere proceeding in an action. This action was commenced by the service of the summons and complaint. The office of the attachment was to take possession of and hold the debtor’s property until the recovery of the judgment, and thereby prevent him from fraudulently disposing of it. The office of the attachment was not to give the court jurisdiction of the action. The word “must,” in statutes, has been construed not to be mandatory. It was so held in Brinkley v. Brinkley, 56 N. Y. 192 ; Jenkins v. Putnam, 106 id. 275 ; 8 St. Rep. 710 ; Spears v. Mayor, etc., 72 N. Y. 442 ; People v. McAdam, 28 Hun, 284 ; People v. Supervisors of Ulster Co., 34 N. Y. 268 ; Dutchess Co. Mut. Insurance Co. v. Van Wagonen, 132 id. 398 ; 44 St. Rep. 441 . There is nothing in section 641 expressly providing, or which indicates that the legislature intended, that a failure to fully state the grounds for the attachment should necessarily make it void. There being nothing in the statute prohibiting it, the court, we think, had the inherent power to permit the amendment. The attachment being a process in the action, power to amend it was given -the court by section 723 of the Code, which provides that the court may, at any stage of the action, in furtherance of justice, amend any process or other proceeding by correcting a mistake, etc. Orders permitting amendments in similar cases have been sustained in the cases of Kissam v. Marshall, 10 Abb. Prac. 424 ; People v. Cook, 62 Hun, 303 ; 42 St. Rep. 245 ; Gribbon v. Freel, 93 N. Y. 96 ; Peiffer v. Wheeler, 76 Hun, 280 ; 59 St. Rep. 106 ; Thames & Mersey Marine Insurance Co. v. Dimmick, 51 St. Rep. 41 ; Kibbe v. Wetmore, 31 Hun, 454 . In the latter case the attachment was issued upon the ground that the defendant was a nonresident of the state, which was the only ground stated in the attachment. The court, on motion, allowed the writ to be amended by inserting therein that the defendant had disposed of his property with intent to defraud his creditors, and had kept himself concealed with like intent, and with intent to avoid service -of process. The case of Cronin v. Crooks, 143 N. Y. 352 ; 38 N. E. 268 , upon which the respondent mainly relies to sustain the order, can, we think, be distinguished from this case. There the affidavit upon which the attachment was issued stated but a single ground, to wit, that the defendant had assigned and disposed ■ of her property with intent, etc. It was' recited in the warrant of attachment that defendant “has assigned or disposed of, or is about to assign or dispose of, her property, with intent,” etc. It was held that there was a failure to state any ground in the attachment, for the reason that .to state in the alternative is to state' neither the one nor the other fact. The question whether
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the court below possessed the power to grant an amendment of the attachment was not presented to the court for decision; for, so far as it appears, no such motion had been made. The amendment asked for here was manifestly in the interest of justice, and would have been granted, had the court concluded that it possessed the power so to do.

As we are of the opinion that the court had the power to grant the relief, and that it was a very proper case for its exercise, the order vacating the attachment should be reversed, and the plaintiff’s motion to amend the attachment granted.

All concur.

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