Galligan v. Groten

Daly, P. J. The attachment was vacated by the Special Term of the City Court on the papers upon which it was granted, and the question before us is whether the case presented by those papers palled-for the exercise of the discretion of the City Court in refusing the provisional remedy. If the justice to whom the application for-the-warrant was originally made might have refused it, the court may set it aside after it has been granted, and we, as an appellate tribunal, cannot interfere with the decision of the City.. Court upon any question, of fact or. inference-of- faet- involved in that decision. Bondy v. Collier, 13 Misc Rep. 15. [429] The warrant of attachment must briefly recite the grounds upon which it was issued. Code, § 641. In this case it specifies that “ The defendant avoids service of a summons and is about to assign, dispose of or secrete his property with the intent to hinderj delay and defraud his creditors and that the defendant is insolvent and unable to pay his debts.” The first ground, that the defendant avoids the service of a summons, is apparently an incomplete attempt to set forth one of the statutory grounds of attachment, namely, that the defendant has departed from the state with intent to defraud his creditors, or to avoid the service of a summons, or keeps himself concealed therein with the like intent. Code, § 3169, subd. 4. It is an insufficient statement because it does not set forth whether the defendant has departed from the state, or conceals himself, with intent to avoid the service of a summons. The. mere statement that he avoids the service of a summons is not a charge either that he has departed-from the state or concealed himself; and those are the important facts. The warrant, therefore, failed to specify a ground of attachment under that provision of the Code. The next ground stated in the warrant is sufficiently set forth, namely, that “Thedefendantisabout to assign, dispose of or secrete his property with the intent -to hinder, delay and defraud his creditors; ” but the facts stated as the evidence of stich design are insufficient to sustain the charge. The evidence is briefly this: That repeated attempts were made to find the defendant at his place of -business, at his residence and elsewhere, in order to serve him with the summons; that the information received was that he was irregular in his habits, and it could not be said when he would be in or where he would be found; that at one time he denied himself when he was at home, as there was reason to believe; that on June 1, 1895, the plaintiff lent him. a thousand dollars in cash and took the note of a third party indorsed by him as security, and when the note became 'due surrendered it at his request, and took his own note in place thereof upon which this action is brought; that he is engaged in the grocery business with several stores and is indebted for large sums of money to various persons for. goods sold and advances made to enable him to conduct his business; that he has been speculating in the “wheat” market,.arid has lost large sums of money and is insolvent and unable to pay his debts, and has made application to many' persons and institutions for loans of large sums of inoney, and has [430] .offered as collateral the stock and fixtures in a store at 930 Sixth ■avenue; that he has endeavored to secure a person to purchase said ■business but has been unable to do so; that the loans he applied -for were not intended to pay his creditors, but to enable him to ■continue his dealings in “ wheat; ” that in many conversations with one of the plaintiffs he never informed him that he was seeking loans on his stock and fixtures or that he intended to pay the 'plaintiff’s debt. All the above matters are stated in the affidavits of one of the ¡plaintiffs (and apparently stated upon his own- knowledge, although some of them must be -matters of opinion and others made on information merely), and all of the statements taken together fail to show that the defendant although evidently in straits for money and endeavoring to raise it, intends to assign, dispose of or secreJ his property with intent to hinder, delay and defraud his creditors. The fact that he has'endeavored to raise money upon his property with which to speculate is no proof of such fact. If it were, a new ground of attachment not provided for in the Code would be established by judicial decision. The order appealed from must be affirmed. McAdam and Bisohoee, JJ., concur. Order affirmed, with costs.