Citation Numbers: 31 Misc. 50, 64 N.Y.S. 649
Judges: Leventritt
Filed Date: 3/15/1900
Status: Precedential
Modified Date: 1/13/2023
This is a motion to vacate an attachment for insufficiency of the original papers. The warrant was based upon the alleged disposition of property with intent, to defraud creditors, and the particular infirmity invoked is the failure to show such intent. The only allegations bearing upon this question are these: In the years 1886 and 1893 the defendant Fox, against whose property the warrant was issued, became the owner of various pieces of real estate which he transferred in November, 1899, to his two daughters for a nominal consideration. The transfer was made about six weeks after indorsement by him of a note, which is the subject of this action, and about six weeks prior to its maturity. Beyond these bald facts the affidavit contains no statement in support of the expressed belief that the conveyance was made in fraud of creditors. There is no allegation of insolvency at the time of the conveyance, nor that the real estate transferred constituted substantially all the debtor’s property or even any considerable portion of it, nor that the conveyance itself rendered him insolvent, nor that he was otherwise indebted at the time. The affidavit is insufficient to support the attachment; it does not disclose fraudulent purpose. The Code provision (§ 636, subd. 2) does not make the disposition of all of his property by the debtor a prerequisite to the granting of an attachment on the ground under consideration, but, in that event, facts other than the mere transfer must be presented to justify the conclusion of fraud. Treadwell v. Lawlor, 15 How. Pr. 8; Weiller v. Schreiber, 63 id. 491; Hyman v. Kapp, 22 Week. Dig. 310; affirmed, 125 N. Y. 700. The affidavit does not disclose whether the plaintiff transferred all or part of his property. All that appears is that he made transfers for a nominal con
Attachment vacated, with ten dollars costs to defendant Fox.