Acker, Merrall & Condit v. Saynisch

Olcott, J.

On August 29, 1898, plaintiff, on the affidavits of Oliver S. Dodd and Frank A. Merrall, obtained a warrant of attachment in this action against the property of the defendant, directed to the sheriff of the county of Eew York, and issued to' him, where-under the said sheriff levied on certain personal property of the defendant. Beinecke & Co., a creditor of the defendant, on the 9th day of September, 1898, entered a judgment in this court against the defendant in this action, for the sum of $411.08, and filed a transcript of the same in the office of the clerk of the county of Eew York, and issued execution thereon to the sheriff of the county of Eew York; and no part of said judgment is paid.

On the 15th day of September, 1898, upon affidavits of the defendant in this action, and M. A. Kursheedt, and upon the affidavits upon which the warrant was issued and all the other papers in the action, said Beinecke & Co., judgment creditors of the defendant, gave notice that on the 20th of September then following they would move for an order vacating the warrant of attachment.

On the 20th day of September, 1898, on the hearing of the motion of Beinecke & Co. to vacate the attachment, the plaintiff produced and read affidavits of James Forrest, verified respectively September 19 and 20, 1898; affidavit of William H. Dodd, verified September 19, 1898; affidavits of Robert Martin, verified September 8, 1898, and deposition of W. D. McGregor, verified September 8, 1898.

Beinecke & Co., the attacking judgment creditor, objected to the reading of any affidavits in opposition to the motion to vacate which did not tend to support the ground upon which the attachment was originally issued. In reply to the affidavits of the plaintiff in opposition to the motion to vacate the attachment, Beinecke & Co. read the affidavits of M. A. Kursheedt and Charles T. Chambers, verified September 20, 1898.

The Special Term denied the motion to vacate the attachment, but without costs, and its order was entered on the 23d day of September, 1898. From this order, Beinecke & Co. take this appeal.

The sole ground upon which the warrant of attachment was issued was that the defendant had departed from the city of Eew York for the purpose of cheating and defrauding his creditors. The two affidavits purporting to support the attachment upon this ground did not contain the necessary allegations upon the knowledge of, the affiants, but stated them upon information and belief without giving the names of the persons from whom such information was derived or stating the reason why such persons’ affidavits were not submitted. This omission is fatal to the attachment and called for its vacation. First National Bank v. Wallace, 4 App. Div. 382; Haskell v. Osborn, 33 id. 127; Abrams v. Lavine, 90 Hun, 566.

Beinecke & Co. having moved to vacate the attachment not only upon the papers upon which it was issued, as they might have done, but upon the affidavits served by Beinecke & Co., the plaintiff introduced further affidavits in support of the attachment. But these affidavits give no support to the ground upon which the attachment was granted; and so far as they tend to show that defendant may have done something else which might have supported an attachment upon some other grounds they are wholly immaterial and incompetent. Code, § 683. That the attacking creditor did not waive his rights in this regard is evidenced by the recital contained in the order now under review.

The motion which resulted in this order is not, as the respondent’s brief suggests, a “ collateral attack ” similar to that discussed in Brown v. Guthrie, 39 Hun, 29. There the attack was against an attachment issued in another action, and the decision had no applicability to the situation in the case at bar. Here the attack is the-direct one authorized by section 682 of the Code.

The attachment is attacked before the actual application of the-property, by a subsequent lienor; and the sole question presented is-whether the affidavits before us are sufficient to sustain the attachment upon the ground upon which, at plaintiff’s election, it was. issued.

Our conclusion being that they are not, the order appealed from must be reversed, with $10 costs and disbursements, and the motion, to. vacate the attachment must be granted, with $10 costs.

Sohuchmatí, L, concurs.

Order reversed, with $10 costs and disbursements, and motion granted, with $10 costs.