In re Vanamee ( 1889 )

Barnard, P. J.

Notice to the attorney general was necessary under chapter 378, Laws 1883. The act is very broad in its language. The attorney general is to be treated as an attorney who had appeared in the action, and even in ea; parte application. The act embraces an action pending for dissolution of corporations and for distribution of assets, and all proceedings in such actions. This is such an action.

The petition itself is insufficient. No facts are stated as a basis for the arrest of Baird. Assuming the regularity of the appointment of the receiver, and that he has the power of trustee of insolvent debtors under the Bevised Statutes,¹ the affidavit must show that “there is good reason to believe that the debtor, his wife, or any ofher person, has concealed or embezzled any part of the estate of such debtor vested in said trustees; or that any person can testify concerning the concealment or embezzlement thereof; or that any person who shall not have rendered an account as above required is indebted to such debtor, or has property in his custody or possession belonging to such debtor. ” The petition states that one Baird, who has not rendered an account, is indebted to the receiver, and has property in his custody or possession belonging to the insolvent corporation; that there is good reason to believe that Baird has a truck and ladder belonging to the same company; and that the said Baird owes the company; and that certain other property has been concealed which Baird can testify about; and that the sources of the receiver’s information are certain affidavits made by Baird, and an examination of certain other writings signed by him, and an inspection of the inventory of the company. The sufficiency of affidavits to justify an arrest under the non-imprisonment act was a subject much discussed while that act was in force. The charge was to be established by satisfactory evidence. Vredenburgh v. Hendricks, 17 Barb. 179. Information and belief are not proof. Broadhead v. McConnell, 3 Barb. 175; Blason v. Bruno, 33 Barb. 520. The wording of the non-imprisonment act is not materially different from from this act, in respect to trustees for insolvent debtors. One requires sufficient evidence to justify an arrest. This trustee is required to furnish “competent proof” that theie is good reason to believe. The court, on these papers, cannot find such competent proof, either that Baird has property, owes a debt, or can testify concerning an embezzlement, or that he has any property in his possession belonging to the debtor. Order affirmed, with costs and disbursements.

1 Rev. St. N. Y. (8th Ed.) p. 2528, § 12, requires that it shall be shown by the oath of the trustees, or other competent proof, that there is reason to believe, etc.