Rallings v. McDonald

Laughlin, J.: The Special Term appears to have considered the motion on the merits and held that any defects in the original papers were supplied [116] by the papers presented on. the motion to vacate the attachment. The defendant’s notice of motion did not specify any irregularity as required by rule 37 of the General Buies of Practice, and, consequently, only jurisdictional defects can be considered. The recital in the warrant of attachment that the action is for “ wrongful detention ” rather than wrongful conversion, in view of the allegations of the complaint and the affidavit on which the warrant was granted, is an irregularity and not a jurisdictional defect. (King v. King, 68 App. Div. 189.) But the warrant must be vacated on the ground that the papers on which it was granted and on which it is sought to be sustained are utterly insufficient. The only ground on which any attempt is made to sustain the attachment is under that part of subdivision 2 of section 636 of the Code of Civil Procedure which provides that, in a proper case, a warrant of attachment may be issued where the defendant, being a resident of the. State, “ has removed, or is about to remove, property from the State, with intent to defraud his * * * creditors, or has assigned, disposed" of, or secreted, or is about to assign, dispose of, or secrete, property with the like intent.” An attachment cannot- be sustained unless the plaintiff shows by competent evidence the facts required by the provisions of the Code ; and mere conclusions of belief, not founded on facts thus shown, are of no avail. (Doheny v. Worden, 75 App. Div. 47; Sizer v. Hampton & B. R. R. & L. Co., 67 id. 547; Dela-field v. Armsby Co., 62 id. 262.) The only facts stated in the affidavit purporting to meet the requirements of the provisions of the Code quoted are that. the defendant has substituted an undertaking for the cash deposited as bail and obtained an order for the return of the deposit, and that the affiant is “ informed and believes that said defendant is about to remove, dispose of or secrete ” the same with intent to defraud his creditors. The only grounds assigned for this belief are the judgments on which executions have been returned, unsatisfied, a failure to discover “after diligent search ” any property on which an execution against the defendant can be levied, and inability to discover the defendant’s whereabouts by inquiry of his attorney and “ diligent search,” which the plaintiff’s attorney has caused to be made, and the statement of the sheriff to the managing clerk of the plaintiff’s attorney of his inability to effect service of the attachment papers on the defend [117] ant. It does not appear whether or not appeals are pending from, the judgments against the defendant, and the facts constituting; the “ diligent search ” for the defendant or for property owned by him are not disclosed. Notwithstanding the deposit the defendant had a right to give bail and was entitled to an order that the money be returned to him or his representatives. (Code Civ. Proc, § 584.) The fact that the money deposited in lieu of bail was loaned to the defendant by Gluck and that the fund was immediately assigned by the defendant to the latter is not controverted. The deposit having served its purpose in this action, it is to be no longer treated as the property of the defendant as against the true owner. Of course if the money were left on deposit for the purpose for which it was so received, and it should be required for the satisfaction of a judgment in favor of the plaintiff under the Code provisions applicable thereto, Gluck would have no valid claim against it; but it is no longer required on deposit and it now presumptively appears that the money was loaned by Gluck and has been assigned to him by the defendant, and, if so, there is no reason why he should not receive it. Furthermore, the order to the sheriff for the payment of the money was signed and acknowledged in the form expressly authorized by section 586 of the Code of Civil Procedure for the payment of such a deposit to a third party, and presumptively, at least, this would entitle Gluck to the fund. Moreover, it appears by the affidavits of both Gluck and the defendant, which are not controverted, that the defendant is honestly indebted to Gluck in this amount for money loaned. The appropriation of property for the payment of an honest obligation is no evidence of an intention to remove, assign, dispose of or secrete property with intent to delay or defraud creditors. It follows, therefore, that the order should be reversed, with ten dollars costs and disbursements to appellant, and motion granted, with ten dollars costs. Van Brunt, P. J., Patterson, O’Brien and McLaughlin, JJ,, concurred. Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.