Salzberg v. Mandelbaum — 70 N.Y. St. Rep. 673

Majority

p. 673

Rachel Salzberg, App’lt, v. Joseph Mandelbaum, Resp’t.

(Supreme Court, General Term, First Department,

Filed October 18, 1895.)

Headnote

Attachment—Affidavits.

An affidavit is sufficient to support an attachment, where it alleges that defendant had caused a pretended mortgage of his property to he recorded with intent to defraud his creditors, and the only proof offered of such fraudulent intent was the affidavit of one who stated that certain alleged real owners of the property had admitted that the mortgage was fraudulent.

Appeal from an order vacating and setting aside a warrant of attachment.

Adolph Cohen, for app’lt; Ira Leo Bamberger, for resp’t.

Order affirmed, with costs, on the opinion of the court at special term.

The opinion of Mr. Justice O’Brien at special term is as follows:

This attachment was granted upon the ground that the defendant had fraudulently disposed of his property, and it is assailed upon this motion upon the ground that the papers are insufficient. After a statement of the plaintiff’s cause of action, the affidavits recite, in effect, that the defendant conveyed the property No. 232 East Ninety-Seventh street to one Joseph Holtzberg; and while we have the conclusion stated that this was fraudulently done,

p. 674

there are no facts to support it. In addition, it is stated that the defendant' now holds the title to premises No. 97 Perry street, and that with intent to defraud his creditors he disposed of his equity in the premises by causing a pretended mortgage for $7,000 in favor of one Lieb Kowalsky to be recorded.

The evidence offered to support the conclusion that such mortgage wTas fraudulent consists of the affidavit of a person who states that Simon Rose and Abraham Mandelbaum, who it is alleged, were the real owners of the property, had admitted that such mortgage was fraudulent. Such an affidavit is insufficierit, for either the defendant was the real as well the ostensible owner of the Perry street property, in which case be could not be affected by admissions made by third parties who are not his agents, and who hold no such relations to him as to make their admissions binding, or if we trike the other view, that the persons who admitted that the mortgage was fraudulent were the owners, and the defendant was only the ostensible owner, then their creditors, and not the defendant’s were defrauded by such mortgage. There are other objections to the validity of this attachment, but the one suggested as to the insufficiency of the papers upon which the attachment was granted need only be referred to.

The motion is accordingly granted with $10 costs.