Tocci v. Gianvecchio ( 1905 )

Bischoff, J.

The motion to vacate the warrant of attachment was made upen the papers upon which the attachment was granted; and, in our opinion, the defendant was entitled to the relief sought.

The affidavit upon which the warrant was based, set forth a sufficient cause of action of the class in which an attachment is authorized; but there was a total failure to bring the case within the provisions of section 3169 of the Code of Civil Procedure, with regard to the residence, or the intended departure, of the defendant. It was not alleged that the defendant was not a resident of this State, nor that he had departed from the State with intent to defraud his creditors, nor that the place of his sojourn could not be ascertained, nor that he was absent from the State, as required by subdivisions 1, 2, or 4, of section 3169 of the Code. It is impossible to bring the case within the alternative provisions of subdivision 3 of that section, to wit: “ That the defendant, being an adult, has removed, or is about to remove property from the State, with intent to defraud his creditors,” since it was alleged in the moving affidavit that, at the time of the application for the warrant, the defendant was in custody, in default of $2,000 bail, to await the action of a magistrate, in the county of New York. The only suggestion of the defendant’s intentions for the future is contained in this statement: “That the defendant may be discharged from custody at any time, and that, in the event of his discharge, defendant will leave the State of Hew York, he having engaged passage on the Steamer Caronia of the White Star Line, for the purpose of defrauding this plaintiff.” This, certainly, does not amount to proof that the defendant, at the time was about to remove property from the State. The defendant was then in custody and was not about to remove, either himself or such property as he possessed; and, at best, we have the plaintiff’s conclusion that, in the contingency of his procuring bail, he might take advantage of the opportunity to leave the country. As the facts appeared and at the time of the application, the defendant was in no position to exercise a choice as to his then movements; and, if he were, there is still a total absence of any allegation that he was about to remove property from the State, which fact alone, irrespe/.tive of the defendant’s personal movements, was an absolute essential for the purposes of a case within subdivision 3 of section 3169 of the Code.

The case, therefore, does not fall within any of the subdivisions of this section; nor does it fall within section 636 of the Code, assuming that the latter section would have application.

The order appealed from must, therefore,be reversed, with ten dollars costs and disbursements, and the motion granted, with ten dollars costs.

Scott and Fitzgerald, JJ., concur.

Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.