Krotosky v. Krotosky

169 A.D. 850, 155 N.Y.S. 625, 1915 N.Y. App. Div. LEXIS 5025

Opinions

Ingraham, P. J.:

A warrant of attachment in this action was granted on the ground that the defendant had assigned, disposed of and secreted his property, or was about to assign, dispose of or secrete the balance of his property with intent to defraud his creditors.

Assuming that the plaintiff had made out a prima facie case to justify the issue of a warrant of attachment in the first instance, the facts that would justify this conclusion have been fully met and answered by the defendant’s affidavits, and on the whole case there seems to be a lack of evidence to justify a finding that the defendant either has transferred or assigned or is about to transfer or assign his property to avoid his creditors. The defendant is a resident of this State, and tying up all of his property to await the determination of this action is not justified unless there is substantial evidence that the defendant is about to make some disposition of his property for the purpose of defrauding his creditors. There is no evidence that he has other debts; his business is here; and nothing that he has done will justify the inference that he is about to make such a disposition of his property as will justify an attachment.

For these reasons I think the order appealed from should be reversed, and motion to vacate the attachment granted, under the circumstances, without costs.

Clarke and Scott, JJ., concurred; Dowling, J., dissented.