Sturz v. Fischer

Pryor, J. The application being on notice, to vacate a warrant of attaclurient on the papers upon, which it issued,'the preliminary question is presented, whether the motion, can . - .be entertained by the justice- presiding in. Part II of the Special Term.' By Rule I, Appellate Division Rules, “litigated motionsn must be heard in Part L By Rule T, “ application fcjr all court orders ex parte,. * * * or where notice is- not. [411] required, must be made to the Special Term for the transaction of exporte business.” An application to vacate an attachment, when founded only on the papers upon which the warrant was granted, if the warrant was granted by a judge out of court,'must be made to the same judge,_ in court or out of court, and with or without notice, as lie deems proper. Code, § 683. “Litigated motions,” as intended in Rule I, I take to be motions which can be heard only on notice. As this application may .be " heard “ with or without notice,”, manifestly notice “ is not required; ” and so by Rule Y it may be heard at the Special Term for the transaction of ex parte business. By section'641 of the Code, “the warrant must recite the ground of the attachment,” else it is void. Cronin v. Crooks, 143 N. Y. 352: In the case before me, the recital of the ground of attachment is, that the defendant “ has assigned, disposed of or secreted his property,” etc. In Cronin v. Crooks, supra, the court held that a statement of two grounds disjunctively and in the alternative is a statement of neither , ground ; sincé, obviously, to affirm one or the other proposition is to affirm neither. A statement that an attachment proceeds upon one or the other of two distinct grounds fails, to indicate upon which ground it proceeds. It stands not upon the one but u-pon the one or the other, and the averment leaves .in question whether' upomthe one ground or upon the other. Hence, if defendant’s position be valid, that the warrant in" controversy exhibits alternatively two distinct grounds of attachment, there would be no-escape from the conclusion for which he contends.. But, as well upon reason as authority, the proposition that the defendant “has assigned, disposed of or secreted” his property involves a single ground of attachment only. It is by putting his property beyond the reach of creditors, no matter by whiph means, whether by disposing of, assigning or secreting it, that the debtor subjects it to attachment.- The baffling of creditors is the controlling" fact, and it exists [412] whether by one expedient or another of those mentioned in the clause. The three agencies of fraud in the group, namely, - assigning, disposing oE and secreting, are legally identical and equivalent. Van Alstyne v. Erwine, 11 N. Y. 331, 339. “ Secreting does not mean hiding alone, but any making away with property which shall put it unlawfully out of the reach of the creditor.” 21 Am. & Eng. Ency. of Law, 994. One may secrete property by putting legal impediments in the way of creditors. Gault v. Dupault, 4 Can. Leg. News, 321. Where the disjunctive or is used, not to connect two distinct facts of different natures,, but to character- ' ize and- include two or more phases of the same fact attended with the- same result, but a single ground of attachment is stated. Drake Attach. § 102. In Garson v. Brumberg, 75 Hun, 336, it was held'that a warrant is not invalidated by the recital - of these grounds of attachment, namely, that “.the said defendant did depart-from- this state with intent to defraud his creditors, or to avoid the service of a summons, or keeps himself concealed therein witl* the like intent.” In Smith, etc., Co. v. Wilson, 76 Hun, 565, the precise point in controversy was adjudicated,- the -court holding that the statement in a warrant of attachment that “ the said defendants have assigned, disposed of or secreted their property ” is a recital of one class only .of the grounds set forth in section 636 of the Code ‘and is sufficient. The defendant contends, however, that the authority of this ruling - is discredited by the decision of the Court of Appeals in Cronin v. Crooks, supra. But the cases are not identical. In the latter the recital in the warrant was that the defendant ' ■ “ has- assigned or disposed of, or is about to assign or dispose of her property.” Were the recital in the warrant under review the same, then, of'course, Cronin v. Crooks would control the decision. Contrary to first impression, my conclusion is that the war- ' rant is valid. Motion denied.