Lamkin v. Oppenheim

LEWIS, J.

The ordér of arrest was granted upon the complaint and affidavits of Alfred S. Foster, one of the plaintiffs, and of George T. Wardwell, plaintiffs’ attorney. It is the contention of the defendant’s counsel that the papers failed to make a case for an order of arrest. It was stated in Mr. Foster’s affidavit that the plaintiffs were copartners carrying on business in the city of Boston, Mass.)that an action was about to be brought by the plaintiffs, as such copartners, against the defendant to recover damages to the amount of $139.20. The facts out of which the cause of action arose were stated in the affidavit as follows:

“That heretofore, and on or about the 9th day of May and 16th day of May, 1894, the defendant ordered of these plaintiffs, as such copartners, goods', wares, and merchandise, consisting of shoes, to the value, and for which the defendant promised and agreed to pay the sum, of $139.20, on a term of credit of sixty days. That no part of said amount has been paid. That, for the purpose of inducing these plaintiffs to sell such goods to him, said •defendant, who was conducting a boot and shoe store in the city of Buffalo, N. Y., stated and represented to these plaintiffs, among other things, that he had a stock of goods worth at least $7,000; $100 in good accounts; owned no real estate or other property except said stock of goods and accounts; was worth at least the sum of $5,000, over and above all debts and liabilities which he owed or had incurred, based on the assets of his business as aforesaid, less his business liabilities as aforesaid; that his total indebtedness did not exceed $1,800, which amount was for merchandise, and that he was owing no borrowed capital or money.”

The affidavit then refers to an affidavit if George T. Wardwell, as annexed to the deponent’s affidavit, and in which it is alleged certain facts appear. It was further alleged that the said statements of the defendant were made for the purpose of inducing the plaintiffs to sell to him the said goods, and that the plaintiffs .relied on said statements, and believed them to be true, and were induced thereby to sell and deliver the goods to the defendant. It is stated in the affidavit of Mr. Wardwell that he was one of the attorneys for the plaintiffs herein, and that on the 20th of June,. 1894, the defendant confessed a judgment in the supreme court in favor of Rachel Oppenheim, his wife, for the sum of $4,458.20 damages and $1(1.31 costs; that the confession of judgment states that the whole amount of said damages was for money loaned by said Rachel Oppenheim to said defendant at various times between March 1, 1892, and December 19, 1893, each of which loans was made payable' one. year from the date thereof; and that, according to said confession, there was due and unpaid from said defendant to his wife for moneys loaned prior to March 1, 1894, the sum of $3,800 and interest, and $200, not yet due, with interest from December 19, 1893, as, by reference to said confession filed in Erie county clerk’s office, will more fully appear. It is further stated in Mr. Wardwell’s affidavit that an execution had been issued upon said judgment, and the entire stock of goods, consisting of boots, shoes, and rubbers, belonging to said defendant, was sold, by virtue of said execution, by the sheriff, to the plaintiff, Rachel Oppenheim, for exactly the amount of her judgment, with interest and expenses of sale added; that Mrs. Oppenheim thereafter carried on the business in her own name; and that the defendant had stated to deponent since said sale that he had no means whatever, and that he had paid none of his merchandise accounts, and that his wife had taken everything he had under said execution sale. These facts would seem to bring the case fairly within subdivision 4 of section 549 of the Code of Civil Procedure, which provides for an order of arrest where' it is made to appear that the defendant was guilty of fraud in contracting or incurring the liability.

The affidavit of the attorney, Mr. Wardwell, is criticised by the appellant’s counsel, first, for the reason that there is nothing in it showing to what action or person it refers, except Rachel Oppenheim. The affidavit was not entitled in any action, but the omission of the title does not impair its effect if it intelligently refers to the action in which it is made. Section 728, Code Civ. Proc. It was annexed to the affidavit of Mr. Foster, one of the plaintiffs, at the time it was used to obtain the order. Foster’s affidavit refers to Mr. Wardwell’s affidavit as annexed to his, and the order of arrest recites that it was so annexed. Foster’s affidavit was entitled in the action. Wardwell’s affidavit fails to mention the defendant’s name, simply referring to him as “the defendant in the action,” without specifically stating what action it referred to. But it fairly appears from a perusal of the entire affidavit that it was made in the action, the title of which was stated in Foster’s affidavit; and, though it was unskillfully drawn, we think it was properly, used as a basis for the order, and that the papers made a case for the order. The order appealed from should be affirmed, with $10 costs and disbursements of the appeal. All concur.