American Horse Exchange, Ltd. v. Strauss — 82 N.Y. Sup. Ct. 192

Majority

p. 192

The American Horse Exchange, Limited, Respondent, v. Jacob Strauss and Max Hamburger, Appellants.

Headnote

Attachment— the facts must be set up.

In an attachment proceeding, the facts showing the alleged fraudulent action of the defendants must be set up to enable the court to determine whether the conclusions drawn therefrom by the affiant were well founded.

Appeal by the defendant, Max Hamburger, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the city and county of New York on the 9th day of November, 1893, denying the defendant’s motion to vacate a warrant of attachment.

S. Feuehwanger, for the appellants.

F. B. Caudler, for the respondent.

Tbis motion is based upon various grounds, only two of wbicb it is necessary for us to consider.

Tbe first is tliat there are two grounds of attachment stated, each of which is inconsistent with the other, and the same facts could not establish both propositions. It is impossible for us to tell which ground the judge who granted the attachment considered to be established by the affidavits.

In the next place, the allegations in the affidavit in regard to fraudulent action upon the part of the defendant are entirely conclusions of the affiant, no facts whatever being set up on which such conclusions rest,

These facts must be set up in order to enable the court to determine whether the conclusions derived by the affiant are well founded.

The order should be reversed, with ten dollars costs and disbursements, and the motion to vacate attachment granted, with ten dollars costs.

Present — YaN BRUNT, P. J., O’BrieN and Parker, JJ.

Order reversed, with ten dollars costs and disbursements, and the motion to vacate attachment granted, with ten dollars costs.