Tannenbaum v. Gottlieb

Barrett, J.: If the case for an attachment here rested solely upon the testimony referred to by the learned judge at. Special .Term, we would have no hesitation in affirming- the order appealed from. But there is other testimony, not referred to in the opinion, which, we think, leads to a different conclusion from that arrived at below. That testimony is substantially as follows : Upon, the 7th day of July, 1896, the defendant informed the plain tiff that he owed but $800 and that his assets amounted to $30,000. Of this latter sum he said that $20,000 was made up of merchandise arid the remainder of cash and bills receivable. There is no suggestion that this statement wTas false; on the contrary, the plaintiff affirms that it was true, and he supports its truthfulness in an important particular by the affidavit of one Kastenbaum, who deposes that on the 5th day of August, 1896,, the defendant told him that his assets then aggre-. gated at least from $22,000 to. $25,000. ' Of this the defendant declared that about $5,000 was in cash ¡and some $15,000 in jewelry and diamonds. He at that time exhibited to Kastenbaum a large amount of money, consisting of bills in denominations of $50 and $100, as well as gold, and also exhibited the jewelry and diamonds. We may fairly conclude upon all this evidence that the defendant’s original statement to the plaintiff was; quite true. At all events, a prima faeie case establishing the facts thus admitted is made out. The defendant’s condition upon the 7th -day of July, 1896, being thus proved, it further appears that less than two months later, namely, on or about the 28th of August, 1896, he was or declared himself to be insolvent. Upon the latter day he made a preferential assignment-for'the benefit of creditors. It-also appears that prior to the assignment he carried on a retail jewelry and diamond business, [107] catering to but a small class. The plaintiff deposes that he is well acquainted with the trade carried on by the defendant; that he does not sell in large quantities in the regular or ordinary course of business, but deals with the public generally on but a small scale* Assuming, as we must, in the absence of any denial, that the defendant’s condition on the seventh of July was what he said it was, the ■inference is almost irresistible that he is still perfectly solvent, and that he has disposed of his comparatively large estate with intent to cheat and defraud his creditors. What has become of his $30,000-of assets ? What has become of all the money, jewelry and diamonds that he exhibited to Kastenbaum about three weeks before he made his assignment % It seems inconceivable that, with but §800 of indebtedness on the seventh of July, he should, in this small retail business, where he was subject to no great or sudden losses, have actually lost upwards of §20,000 in about seven weeks. All this clearly calls for explanation. Upon its face, undenied and unexplained, it points convincingly to a fraudulent disposition of those .assets. The defendant moved to vacate this attachment solely upon the papers upon which it was granted. Wé think these papers made out a primafacie case of a fraudulent disposition by the defendant of his property, and that he was certainly called upon to explain the statements and facts to which we have referred. The order should be reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs, without prejudice, on payment of these costs, to such an application upon affidavits as the defendant may be advised to make. Yan Brunt, P. J., Rumsey, O’Brien and Ingraham, JJ., concurred. Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs, without prejudice, on payment of these costs, to such an application upon affidavits as the defendant may be advised to make.