Rickerson v. Bunker

26 Misc. 383, 56 N.Y.S. 202

• Court: Appellate Terms of the Supreme Court of New York
• Decided: February 15, 1899
• Status: Published

Opinion

MacLean, J.

The appellant contends, first, it is not shown in the language of section 636, Code of Civil Procedure, in the moving affidavit, “ that the plaintiff is entitled to recover a sum stated therein, over and above all counterclaims known to him; ” and, secondly, the allegation that the defendants “ have assigned, disposed of * * * or are about to assign, dispose of * * * property,” in the language of section 636 Code of Civil Procedure, is in the alternative and so not affirmative and not sufficient.

Respecting the plaintiff’s right of recovery, it is not necessary to adopt the words of the statute (Ruppert v. Haug, 87 N. Y. 144), advisable as that is, for it is enough to show the facts required, and that sufficiently appears from the words, “ defendants are justly indebted to him in the sum of $511.31 over all set-offs or counterclaims that the said defendants might have against this plaintiff to his knowledge.” Moreover, the expression employed and quoted above is practically the same as one heretofore regarded as sufficient. Barton v. Saalfeld, 1 How. Pr. (N. S.) 276. Outside of the alternative statement objected to, the affidavits presented sufficient evidence of fraudulent disposition of property to authorize the issue of an attachment. Whether that evidence appears or not with such cogency as to satisfy everyone, it satisfied the judge who granted the attachment and the justices of the General Term, and their action may not now be interfered with.

The order should be affirmed, with costs.

Freedman, P. J., concurs; Leventritt, J., concurs in result.

Order affirmed, with costs.