O'Rourke v. Rankin

Putnam, J.: The evidence that a person is leaving the State on a journey overseas is far from a ground to support the charge that he is removing “ property from this State with intent to defraud his creditors.” We are not now concerned so much with the plaintiff’s charge of conversion of her effects. The question [497] is whether upon the new proofs by the affidavits from both sides there appears ground to determine that defendant was removing property to defraud his creditors. There is no basis whatever for such imputation. The mere fact that, in these times of extended travel, a resident of New York gives up his business and engages passage by sea to a foreign land cannot make out a removal of property to defraud his creditors, especially when substantially all bis property remains in local banks and trust companies, and he shows clearly that his known debts are paid. (Dickey v. Findeisen & Kropf Mfg. Co., 177 App. Div. 861.) A party relying upon a right to a remedy against another based upon the defendant’s alleged commission of a fraud, must show affirmatively facts and circumstances necessarily tending to establish a probability of guilt, in order to maintain his claim. (Morris v. Talcott, 96 N. Y. 100,107.) Neither is this attachment aided by the argument that it now appears that defendant may remain outside this State for more than six months, without having designated a person to receive service of process, under the last part of the Code of Civil Procedure, section 636. The plaintiff has an appearance in the cause, with defendant’s answer. Her attachment should fall for the lack of the statutory conditions which alone can justify such a provisional remedy. I advise, therefore, that the order be reversed, with ten dollars costs and disbursements, and the defendant’s motion be granted, with ten dollars costs. Jenks, P. J., Mills, Rich and Kelly, jj., concur. Order reversed, with ten dollars costs and disbursements, and defendant’s motion granted with ten dollars costs.