First Nat. Bank v. Bushwick Chemical Works

Lawrence, J. In this case, after examining all the affidavits submitted, I am of the opinion that I ought not to vacate the attachment issued by Mr. Justice Patterson. It is distinctly stated in the affidavits upon which the attachment was granted that the amount due was over and above all counterclaims, and while the affidavit is made by the attorney, the plaintiff being a foreign corporation, facts and circumstances are stated therein which tend most strongly to show not only that the statement as to counter-claims is true, but also that the defendant has disposed of its property with intent to defraud its creditors. The relation's between the Buffalo Chemical W arks and the Bush-wick Chemical Works and the late firm of Martin ICalbfleisch’s Sons are minutely detailed, and the sources of such information are shown to be a judgment on the files of this court in the county of Kings, and the circumstances attending the obtaining and rendition of that judgment. It is also shown that in and by a report rendered by one of the officers of this court as referee it appeared that Leander T. Savage, who was at the times mentioned in said affidavit treasurer of the defendant, the Bushwick Chemical Works, and a clerk, before the appointment of the receiver, with the firm of Martin Kalbfieisch’s Sons, was sworn in the proceedings before said referee, and that he produced a list of claims against said firm, and among others was the note which is the subject of this action, which was made by the defendant, the Bushwick Chemical Works, and indorsed by said firm. Prom his position as the treasurer of the said defendant, the Bushwick Chemical Works, said Savage must have known whether or not the said note was an existing liability of said corporation, and whether there were any offsets against it, and the fact that he swore that it was an existing liability of said firm tends most strongly to corroborate the affirmation of the attorney upon whose affidavit the attachment was obtained that there were no offsets or counter-claims against it. In this respect the case differs from the cases referred to in the brief of the counsel for the defendant, and it seems to fall rather within the principles enunciated in' the cases of Bank v. Voisin, 44 Hun, 85, and Gribbonn v. Back, 35 Hun, 542, and Hamilton v. Steck, post, 831. It seems to me, also, that the facts stated in the affidavit upon which the attachment was granted are prima facie sufficient to establish that the defendant, the Bushwick Chemical Works, has disposed of its property with intent to defraud its creditors, and that in the absence of any explanation of the facts contained in the plaintiff’s affidavit, tending to show such fraudulent disposition, the attachment should not be disturbed. McCullough v. Moss, 5 Denio, 567; Bank v. Bank, 13 N. Y. 315; State of Michigan v. Bank, 33 N. Y. 125; Decker v. Decker, 108 N. Y. 128, 15 N. E. Rep. 307; West v. Manufacturing Co., 44 Hun, 623, mem.; Bank v. Elliott, 42 Hun, 121, 128. Deeming, as I do, that the sources of information upon which the attorney for the plaintiffs acted in making the affidavit upon which the attachment was obtained are sufficiently disclosed by him, and that the records and testimony referred to by him prima facie corroborate his statement of the essential facts upon which the right to the attachment is based, I conclude, that the learned justice was right in issuing the warrant, and that until the prima facie case for an attachment has been overthrown by opposing affidavits it ought not to be vacated. See Allen v. Meyer, 7 Daly, 229; Easton v. Malavazi, Id. 147. Motion denied, with costs.