Reed v. Ennis

4 Abb. Pr. 393

• Court: New York Supreme Court
• Decided: April 15, 1857
• Status: Published

Opinion

Mitchell, J.

—Haven issued an attachment, and caused it to be levied on property of Ennis, owned by him and a partner, not a defendant in that action. Ennis thereupon requested Reed & Co. to accept a confession of judgment from himself and copartner, and levy on the attached property, thus gaining a prior right of payment over Haven. The general term set aside the judgment and execution on the 19th of November last, as being intended to defraud creditors. Thereupon Reed & Co. issued an attachment on their partnership debt, and directed the sheriff to levy on the same property on which Haven had levied : having done this they took no further step in this new action, and did not even prepare papers for publication against Ennis as a nonresident until the 13th or 31st of March last, more than four months after their attachment was levied, thus leaving their attachment dormant, and apparently to be used only against other creditors. They and their attorney endeavor to explain the delay, but the explanation is not satisfactory. They went on selling to Ennis & Co. after the attachment issued. This showed a measure of reliance on his credit. They required and got security on those sales. This also shows a perfectly friendly feeling between them and Ennis & Co., and that if they chose they could get security for the debt attached; and justifies the inference in connection with their delay in prosecuting the present suit, and the established design in the former confession of judgment ; that the same design still exists ; and that the attachment is levied, not to secure the debt due to them, but to continue the hindrance and delay of Haven ; and that it would be dropped if Haven’s claim were out of the way.

The motion therefore is granted to vacate the attachment issued by Reed & Co., with $10 costs of the motion.