Chambers v. Durand — 33 N.Y. Super. Ct. 494

Majority

p. 494

WILLIAM R. CHAMBERS, Plaintiff and Respondent, v. J. SILVIE DURAND, Impleaded, &c., Defendants and Appellants.

Headnote

Where an order of arrest is granted upon a charge of a fraudulent disposition by the defendants of their property, which is supported on the part of the plaintiff by very little proof, and the facts and circumstances claimed to present such proof are slight, and on a motioti. to vacate said order, the allegations of the plaintiff are expressly and distinctly denied by the affidavits on the part of the defendant, the order of arrest should be vacated.

Affidavits read on the part of the plaintiff on the motion, claiming the right to the order of arrest on a different ground than first alleged,— namely, on account of a fraudulent contraction of the debt, with the plaintiff’s assignor,—cannot be used in support of the order, although if used in the first instance and not afterwards rebutted by the defendant, would sustain the order. The order must stand or fall upon the original cause of arrest and the affidavits establishing the same, with such corroborative proofs thereof as may be furnished by the plaintiff on the motion to vacate the order. As to any allegations of new grounds or causes of. arrest, the defendant is entitled to an opportunity to meet the same.

If the plaintiff fails to sustain his first grounds of arrest, and yet by his proofs on the motion establishes another cause of arrest, the order should be vacated without prejudice to a new motion for an order of arrest on the part of plaintiff on notice to defendants.

Before Monell and Jones, JJ.

Decided December 31, 1871.

Appeal from an order denying a motion to vacate an order of arrest.

Frederick G. Anderson, for appellants.

John H. Cornell, for respondent.

The only allegation in the affidavit, upon which the order of arrest was obtained, is of a fraudulent disposition by the defendants of their property. There is no allegation of any fraud in contracting the debt.

The charge of a fraudulent disposition of their property is supported, on the part of the plaintiff, by very little proof; and the facts and circumstances claimed to furnish such proof, are slight in the extreme. They consist of an unperformed promise to pay; a false representation of a sale, and an apparent absconding of the defendant. Some, and the most material of these averments, are stated to be upon information merely, which will not do ; and they are not corroborated by any other proof.

All the allegations in the plaintiff’s affidavit are expressly and distinctly denied by the defendant.

Upon the motion the plaintiff furnished an additional affidavit, corroborating his statement of the defendant’s promise to pay, but failed to otherwise support his charge of fraud.

The affidavit,' however, of the plaintiff’s assignor, which, for the first time, was read on the motion, alleges a fraudulent contraction of the debt. This puts the right to arrest on a different ground ; and had it been alleged in the first affidavits, or used in obtaining the order of arrest, it would have had to have been met by the defendant.

Without deciding whether a new cause of arrest can be alleged, in support of an order granted for another and different cause, I am satisfied that in this case the defendant should have an opportunity to meet such new allegations. And as I am of opinion that the plaintiff has wholly failed to sustain his first ground of arrest, the order should be set aside, but without prejudice to a new motion for an order on notice to the defendant.

p. 496

I do not regard this as a case of mere conflict of evidence, but rather as a case where the plaintiff’s original facts are extremely weak, and where on these facts the clear weight of the evidence is with the defendant. Whether, upon a new motion, the new charge can be used against the defendant, need not now be determined.

Order reversed without prejudice, &c.