Murphy v. Fernandez — 23 N.Y. Super. Ct. 665

Majority

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Michael Murphy et al., Plaintiffs and Respondents, v. Antonio R. Fernandez, Defendant and Appellant.

Headnote

1. Where it. appeared by the affidavits upon which an order of arrest was granted, that the defendant incurred the debt sued for in purchasing property from the plaintiffs, by fraudulently representing that he was a man of wealth, and the owner of a plantation and mine, and he gave his notes to the plaintiffs for the amount of the debt, and after they became due and were unpaid he falsely represented to the plaintiffs that he was partner in a firm upon whom he had authority to draw for the debt; whereupon the plaintiffs received from him, in lieu of the notes, his drafts upon his alleged firm, which the firm refused to accept: Held, that the order of arrest in this case was properly granted, and that upon the affidavits, on which a motion to set it aside was made and opposed, an order refusing to set it aside should be affirmed.

2. Receiving the drafts under such circumstances does not preclude the plaintiff from obtaining an order of arrest.

(Before Bosworth, Ch. J., and Moncrief and Robertson, J. J.)

Heard, February 7, 1863;

decided, February 21, 1863.

This was an appeal by the defendant from an order denying Ms motion to vacate an order of arrest.

The action was brought by Michael Murphy, John Mc-Curdy and Jacob S. Warden; and the cause of action and grounds of the arrest are set forth in the affidavit of one of the plaintiffs, on which the order was obtained, the allegations of which are as follows:

“ That the plaintiffs have a good cause of action against the defendants for the sum of $3,715.01, with interest from the first day of October, 1861. Cl.

“That the grounds of such debt, and the circumstances thereof, were as follows : On the 24tli day of May, 1861, the defendant applied to deponent to furnish certain machinery and articles connected therewith fit and proper to be used in the manufacture of oil upon a certain plantation and mine in the Island of Cuba.

“That the defendant then falsely and fraudulently represented himself to be, not only solvent, but wealthy; and falsely stated that he was the owner of the plantation and mine for which such machinery was intended and for which it was to be used by him.

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“ That, relying upon such representations, the plaintiffs entered into a written contract with the defendant to furnish the said machinery; in which written contract, signed by the defendant, the defendant was described in the following words: ‘Antonio R. Fernandez of Havanna, in the Island of Cuba.’ That the plaintiffs did the said work and furnished the articles according to the contract, and the amount due the plaintiffs therefor was the sum of $3,715.01, for which the defendant then gave to the plaintiffs- his promissory notes, payable as follows: $1,575 in three months, and the remainder in six months.

“ That both the said notes in due time became due and were unpaid, and have never been paid: That thereupon the defendant falsely, stated to the plaintiffs that he had a partner in the ownership of said plantation and mine, to wit, one Mantilla, and falsely'stated that said Mantilla-and himself were partners in the firm of Fernandez & Co., of Havana, and falsely stated that he had authority to draw drafts upon said firm of Fernandez & Co. for the amount of said notes, which drafts would be accepted and paid; whereupon the defendant received back his said notes from the plaintiffs, and gave to the plaintiffs drafts for the same amount, with interest added, drawn upon said house of Fernandez & Oo.”

[A copy of these drafts was annexed. They were drawn on Fernandez & Co., and signed Fernandez & Co., Antonio R. Fernandez.]

Upon this affidavit, and another one made by Augustus H. Tait, corroborating its allegations, and stating that the deponent had seen the articles of' copartnership of Fernaudez & Co., and had ascertained from them, and from inquiries of members of the partnership, that the defendant was not a' partner in that firm, the plaintiffs obtained an order of arrest. The defendant subsequently moved to vacate it, and the contents of the affidavits used upon the motion sufficiently appear in the opinion of the Court.

The motion was heard in January, 1863, before Mr.

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Justice Barbour, who denied it, and from his order the defendant appealed.

F. H. Dykers, for defendant, appellant.

Benedict, Burr & Benedict, for plaintiffs, respondents.

The order of arrest was granted on sufficient affidavits. They establish the existence of a debt, and that it was fraudulently contracted.

It is sworn to in them, that the defendant represented that he was not'only solvent, but wealthy, and was the owner of the plantation and mine for which the machinery was intended, and on which it was to be used by him. That he described himself, on the written contract for the machinery, as “Antonio B. Fernandez, of Havanna, on the Island of Cuba.” That these and other representations stated to have been made, were false.

"While the defendant denies having made most of the alleged representations, he does not deny having represented that he was not only solvent, but wealthy, and he deposes that he then was, and now is, a man of means, perfectly solvent, and worth more than $80,000, over and. above his just debts and liabilities, and states of what his property consists, and that besides this, he yet has an interest in the house of Fernandez, SÍiemper & Go., of $61,500.

Alberto A. Fernandez specifies as property owned by the defendant, two houses in Marrianna, worth about $40,000, and an interest in the house of Fernandez, Shemper & Co., “represented by $61,500.” Dionisio Mantilla specifies property owned by the defendant, and states that “he has now an interest in said house, represented by 123 shares in total value of $61,500, and that he also owns property worth $40,000, or thereabouts,” evidently refering to the two houses in Marrianna.

These are the only affidavits which undertake to describe and identify the defendant’s property.

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Rudolph Seig, a confidential clerk in the house of Fernandez, Shemper & Co., deposes that it failed in October, 1859, for about $900,000. That this firm-was a joint stock company, and that a Mr. Rendon, at the time of the failure, secured a part of its liabilities, and that the defendant transferred all the shares he had to Rendon, and it was attempted to carry on the business in the name of H. Shemper & Co., and the defendant was excluded from all control or management. That the experiment resulted in the failure of Rendon, and in a final stoppage of the concern in the beginning of 1862, and that the shares in this firm are worth nothing. That the two houses in Marrianna, are mortgaged for nearly, if not their full value, and that if the defendant has any means they are hid away from his creditors. That Dionisio Mantilla is a man of no pecuniary responsibility whatever, and Albert A. Fernandez is not of lawful age to transact business.

This affidavit effectually meets those on behalf of the defendant, as to all of the property he pretends to own, which he so specifies, as to render it possible to contradict him directly, on such evidences of a man’s solvency as these papers, as a whole, present. I should not expect any one would sell to him, to the amount of $3,715, on credit. They show that the drafts he gave in exchange for his notes, would have been valueless if accepted. His statements as to his two houses at Marrianna and their value, and the extent of his interest in the house of Fernandez, Shemper & Co., and the affidavit of Seig in regard to them, justify a close criticism of the other portions of the defendant’s affidavit, and detract from the consideration which might otherwise be due to them. As the case stands, there is much reason to believe that there was no intent to pay for this machinery when it was ordered, and that the debt was fraudulently contracted. (Hennequin v. Naylor, 24 N. Y. R., 139.)

This case is totally unlike the Merchants' Bank of New Haven v. Dwight, ( 13 How. Pr., 366 ; and see 1 E.

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defendant to bail, by anything which occurred in taking the drafts which the drawees refused to accept.

The order should be affirmed, with $10 costs.