Lukens Iron & Steel Co. v. Payne

13 A.D. 621

Opinion

Landon, J.:

In this appeal by the defendants themselves from the order denying their motion to vacate plaintiff’s attachment, the defendants read in opposition-to the plaintiff’s affidavits, above considered, their own affidavits to the effect that the chattel mortSage given by them to the Chemung Canal Bank was given in good faith and to secure payment to the bank of their debts honestly incurred and-owing to it; that there was no agreement between defendants and the bank that the mortgage should not be filed, and denying that they told plaintiff’s manager that if plaintiff sued them they would shut down and that the bank would take all théir property, and denying their insolvency. Also, the affidavit of the president of tne Chemung Canal Bank to the effect that the mortgage was taken in good faith to secure payment of defendants’ indebtedness to the bank; that there was no understanding that the mortgage should not be filed, and no intention to aid defendants in any scheme to hinder, delay or defraud their creditors. On the part of the plaintiff additional affidavits were read, reiterating its moving allegations and giving details—not denying defendants’ indebtedness to the bank—but fiving facts tending to show that the ank was to keep the chattel mortgage a secret as long as it would be of assistance to defendants to do so, also showing more clearly defendants’ insolvency — its causes and duration. Upon all the evidence, we think the court below was j ustified in finding that the facts were substantially as alleged by the plaintiff, and, therefore, the order should be affirmed,' with ten dollars costs and disbursements. All concurred.