Proctor v. Whitcher

15 A.D. 227, 44 N.Y.S. 190

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 15, 1897
• Status: Published

Opinion

Per Curiam :

The defendant appeared by attorney specially and only for the purpose of moving to set aside the warrant of attachment, because the summons was not properly served, and because of the insufficiency of the affidavit upon which the attachment was issued. The constable made separate returns of the service of the summons and of the attachment. He returned that on August 3, 1896, he “ served the within summons on the defendant, Charles F. Whitcher, at the town of Waddington, by delivering to and leaving with Joseph G. Taylor, his agent, personally, a true copy thereof.” He made return that on August 3, 1896, he “ left certified copy of attachment and inventory at the Taylor House, the last place of the residence of the defendant in Waddington, with Mr. J. G. Taylor, defendant’s agent, who resided at the place last aforesaid mentioned, defendant not being in the county at the time.”

Section 2910 of the Code of Civil Procedure prescribes the requisites of service; the return of the service of the summons is defective in the constable’s failing to return that the copy was certified, and that he left it at the last place of residence of the defendant in the county, with a person of suitable age and discretion. The return upon the attachment does not state that the certified copy was left with a person of suitable age and discretion, or at the last place of residence of defendant in the county. If, as is probable, we can read the two returns together, we should not then have the specification of all the particulars the section requires. It is probable that the omissions might have been supplied, but as they were not, we cannot supply them.

The affidavit upon which the attachment was issued states that the defendant “some time ago left Waddington and the county of St. Lawrence, where he last resided, and deponent believes, with intent to defraud his creditors, and remains away for that purpose.” This statement of belief should be fortified by some statement of facts tending to show that it was well founded. The facts stated in the affidavits are: (1) That the defendant left the county some time ago and remains away; (2) that he is disposing of what property he has in the county as fast as possible; (3) that he owes many debts in St. Lawrence county ; (4) that he has given an order to one Ira G. Taylor, of Waddington, to take from the possession of plaintiff a buggy, which is the only property plaintiff has with which to secure his debt against defendant.

These facts do not of themselves show a fraudulent purpose. Ho fact is stated which gives us any clue to the defendant’s intent, whether fraudulent or not. We think the affidavit insufficient.

The judgment of the County Court and of the justice of the peace should he reversed, with costs.

Judgment of County Court and of Justice’s Court reversed, with costs of each court and of this appeal.