Achelis v. Kalman

60 How. Pr. 491

• Court: New York Court of Common Pleas
• Decided: January 15, 1881
• Status: Published

Opinion

Per Curiam.

The question in regard to the appealability of the order which has been suggested by the counsel for the respondent, seems to be met by the 683d section of the Code, which is a new provision, and which did not exist in the old Code (there is an express provision in the 683d section of the Code), that an application may be made to vacate an attachment founded only upon the papers upon which the warrant =was granted, if such permission is given by the Code. It cannot be but that it was intended that the motion should be made upon these papers for the purpose of ascertaining whether the papers presented a proper case for the issuing of an attachment, not as to whether there was such facts as would confer jurisdiction upon the officer who granted the attachment, because the right existed to have the attachment vacated upon that ground. Without this provision, it would seem to have been to allow the judge upon the motion to determine upon subsequent examination whether .'there was sufficient to justify the officer in granting the warrant.

In the section there is an express provision that an appeal may be taken to the general term. This order continued the attachment, and as a result, there was a right to appeal to the general term; and the general term must exercise the same supervision over the motion that the judge to whom it was originally made could have done, and it is a review of his judgment upon these papers, for which the appeal is provided, and as a result the general term must consider as to whether there is sufficient in the papers to justify the issuing of the attachment; not whether there was jurisdiction. Therefore we are of the opinion that the appeal must be maintained.

The next question is whether there was sufficient in the papers to justify the attachment. That there was sufficient to justify an order of arrest, will undoubtedly be conceded by the counsel for the defendant, admitting the facts in the affidavit to be true, but there was not sufficient to justify the attachment. The fact that the defendant sent these identical goods to auction under the position which the plaintiff occupies, made a fraudulent disposition of the plaintiff’s property. The plaintiff claims he rescinded the sale, and they sued for the property, and consequently that element is eliminated from the case. Then, where the party made an assignment in, October, the goods being bought in August, and there being preferences to creditors whom he owed, how can the court assume from that fact, and that seems to be the solitary fact, that there was a fraudulent disposition of his property ?

We do not think it is sufficient to justify it.

Therefore, we think the attachment must be reversed, for the reason that there was no connection between the previous acts and the assignment sufficient to prove the assignment to have been made with a fraudulent intent or to warrant that conclusion.