Cronin v. . Crooks

38 N.E. 268, 143 N.Y. 352, 62 N.Y. St. Rep. 307, 98 Sickels 352, 1894 N.Y. LEXIS 957

• Court: New York Court of Appeals
• Decided: October 16, 1894
• Status: Published

Opinion

Gray, J.

The warrant of attachment, which was granted in this action, was based upon an affidavit which set forth a certain disposition made by the defendant of her property; which deponent alleged to have been fraudulent, and whereby she had assigned and disposed of her property with intent to defraud her creditors and to hinder etc. the plaintiff in. the collection of his demand against her. Without considering the sufficiency, of the affidavit, we think it very clear that the warrant was defective. The warrant recited that the defendant “ has assigned and disposed of, or is about to assign or dispose of her property.” The provisions of section 641 of the Code of Civil Procedure were not complied with. They provide, among other tilings, that the warrant “ must briefly recite the ground of the attachment.” This warrant stated no ground; for to state in the alternative, is to state neither the one nor the other fact. Such an alternative statement of grounds results in a mutual exclusion.

The General Terms of the first and fifth departments have construed the section of the Code in the same way as has the General Term below (Johnson v. Buckel, 65 Hun, 601; Hale v. Prote, 75 id. 13; Dinturff v. Tuthill, 43 State Rep. 704), and we think the construction, which has been thus generally given, is right. Our review of this order is justified by the insertion in it of the grounds for the affirmance. A question of law only was raised, as to the power of the court to grant such a warrant.

The order should be affirmed, with costs.

All concur.

Order affirmed.