Wallach v. Sippilli

65 How. Pr. 501

• Court: New York Supreme Court
• Decided: June 15, 1883
• Status: Published

Opinion

Daniels, J.

The attachment was allowed upon the ground that the defendant kept himself concealed to avoid the service of a summons, and had assigned and disposed of his property with intent to defraud his creditors.

The latter of these charges was based upon an abundant recapitulation of circumstances tending to show its existence. But the difficulty in the case is that they were all asserted upon information and belief, and that information was in no manner authenticated by the persons from whom it had been obtained. For that reason this portion of the application was not sustained as the law requires it to be to permit the issuing of an attachment (3 Greenleaf on Ev. [8th ed.], sec. 384; Steuben Co. Bank agt. Alberger, 78 N. Y., 252).

To sustain the other ground the affidavit merely shows that the person making it had called at the residence of the defendant and endeavored to secure an interview with him, which was refused by the attendant at the door under the" asserted authority of the defendant, and that certainly failed to establish- the alleged fact that he was concealing himself at his residence to avoid the service of the summons.

The affidavit was radically insufficient to support the application for the attachment, and the order should be reversed, with the usual costs and disbursements, and an order entered vacating the attachment.

Davis, P. J., and Brady, J., concurs.