Union Distilling Co. v. Ruser

14 N.Y.S. 908, 39 N.Y. St. Rep. 128, 1891 N.Y. Misc. LEXIS 2558

Opinion

Patterson. J.

The motion to vacate the attachment was based on the-papers upon which the warrant was granted, and the single question presented on this appeal relates to the sufficiency of the proof before the learned justice by whom the attachment was issued. The general ground upon which the writ was allowed was that the defendant had disposed, or was about to dispose, of his property with intent to defraud his creditors; and an inspection of the affidavit used on the application shows that facts sufficient to. support it were distinctly stated, and by an affiant who, from his relation to the defendant and his opportunities of knowing the facts to which he deposed, was competent to swear to them as within his personal knowledge. That affiant (Sparr) was a clerk in the employ of the defendant, who, being in ill health, went to Colorado, leaving a power of attorney with his brother to. transact all business. That brother asked Sparr to purchase the business, offering to sell it at much less than its real value if payment were made at once. Sparr told the defendant’s brother that the proposal had the appearance of a fraud upon the defendant’s creditors, and was reproached for his. simplicity, and told to go home and get the money, but declined to do so unless the defendant’s creditors were notified and consented, but the attorney in-fact of .the defendant declined to do that. Thus it appears that the defendant, through his attorney in fact, was attempting in haste to realize money on the defendant’s business, but this by itself may not be sufficient to make-out a prima facie case. But the affidavit further proceeds to disclose facts, showing concealments of money of the defendant. The affiant swears, as. within his own knowledge, that the defendant’s wife was directed to draw all money from bank, and not to leave any of it in the safe on the premises on which the defendant’s business was carried on; that the defendant’s wife has. since then kept all the receipts of the business about her person; and that, while having large amounts of money, she has told creditors applying for payment of claims that she had none, and, finally, on paying a trivial amount on account of a bill, she declared in the hearing of the affiant it was the last. payment that creditor would ever get. These facts, thus sworn to by a per-, son cognizant of them, were sufficient to authorize the judge to exercise hiS' judgment as he did exercise it, and the order must be affirmed, with costs.