
    BROOKLYN DAILY UNION against HAYWARD.
    
      City Court of Brooklyn;
    
    
      General Term, June, 1871.
    Arrest.—Motion to Vacate.—Sufficiency of Affidavit.
    On appeal from an order denying a motion to vacate an order of arrest, where the defendant has full opportunity to explain the allegations of the affidavits on which the order of arrest was granted, and has failed to do so, these allegations are to be taken most strongly against him.
    Where the allegations in an affidavit are expressed to be made according to the best knowledge and belief of the affiant, although the effect of the allegations are thereby weakened, yet if the facts appear to be within the knowledge of the affiant, their force is not wholly destroyed, and they may be sufficient to uphold an order of arrest.
    
    Where affidavits alleged that the defendant bad made to the plaintiff a promissory note payablé within one month from date, and after the making and before the maturity of such note, a fire occurred on the premises of the defendant, who obtained large sums of money from the insurance on his property, and it also appeared that defendant, without giving any notice to the landlord or his agent, suddenly and secretly abandoned his house before the expiration of the lease, and removed his family and the furniture of his house to another State,—Held, that these facts, unexplained, were sufficient to sustain an order of arrest.
    Appeal from an order denying a motion to vacate an order of arrest.
    An order of arrest was obtained in this case on two affidavits. The first was made by Henry E. Bowen, who stated the incorporation of the plaintiff, that he was its secretary, that the firm of Hayward & Cantrell were indebted to the plaintiff in the sum of two hundred and ninety-four dollars eighty-four cents, on a promissory note made by them, payable one month after date. The affiant then further alleged:
    5. “That the said defendant, Samuel E. Hayward, is about to remove from this State; that he has abandoned his former residence and removed his family and furniture from this State to Boston, without surrendering the tenancy to his landlord, or notifying him in any way of such removal, as deponent is informed by A. S. Éowley, the agent of said landlord, and verily believes.
    6. “ That after the said promissory note was given, and before its maturity, a fire occurred at defendants’ store, whereby the stock and property therein contained were largely damaged. That prior to the said removal by defendant Hayward of his furniture and family, said Hayward obtained from certain insurance companies large sums of insurance money, due said defendants by reason of said fire. That deponent is informed that said Hayward retains possession of said sums of money from his former partner Cantrell, and refuses to employ said sums of money in the payment of the firm debts, and deponent believes that said Hayward is about to leave this State with said sums of money, and to remain outside the State with intent to defraud creditors of said firm, and by reason of said departure the payment of said promissory note to plaintiff will be evaded by said Hayward and by said defendants.”
    The second affidavit, dated April 12, 1871, was made by A. S. Rowley, who, after stating that he was the agent for and had charge of the premises formerly occupied by Hayward, alleged:
    “That said Hayward, on or about the month of March, 1871, abandoned said premises, and removed his family and furniture therefrom, and left them untenanted without notice to said landlord or deponent of said departure, and said departure was secretly and suddenly arranged and carried out. That said Hayward’s lease of said premises did not expire till the 1st day of May, 1871. That the foregoing facts are true to the best of my knowledge and belief.”
    A motion at special term to vacate the order of arrest on the plaintiff’s affidavits was denied, and defendant appealed.
    
      C. S. Woodhull, for defendant, appellant.
    I. Facts proved are necessary to sustain an order of arrest. Generally a positive oath is required, and when some of the facts are allowed to be presented on information and belief the affiant must state his sources of information, the particular facts he has learned, his belief in their truth, and the reason why the oath of his informant is not produced. A mere oath to general conclusions of fact or law never would avail, nor would information alone, nor belief alone. These rules have been strictly applied by the courts (Voorhies’ Code, 10 ed., §§ 179, 181; and Cases on Pp., 289, 290, 291 ; Courter v. McNamara, 9 How. Pr., 255 per Harris, J.). Same as to warrants of attachment: Voorhies’ Code, 10 ed., § 229; Cases on Pp., 333, 334; Mott v. Lawrence, 17 How. Pr., 559, G. T. Com Pl., per Daly, F. J.).
    IL The only facts really established are, that during about a month while a partnership note of defendant’s firm held by plaintiff was running to maturity, Hayward, one of the makers, collected moneys which he had a' right to collect and changed his residence. Legal evidence of these facts, and these only, is offered (See Bowen’s affidavit). Another part of Bowen’s affidavit shows merely what he has been informed, but not who told him, nor whether he believes what he heard to be true. Another part gives his mere belief or legal conclusion as to Hayward’s purposes, without giving facts from which the court can reach the same conclusion. This information, without source or belief, and this mere legal conclusion of plaintiff, are of nó avail. Another part of Bowen’s affidavit depends entirely on information received from A. S. Rowley and Bowen’s belief of Rowley’s statements. This would do so far as it goes, if Rowley’s affidavit was good for anything. But Rowley’s affidavit is worthless because it states nothing positively nor anything even on information and belief. - Everything it does state is reduced-to irresponsible swearing to the last clause: “ The foregoing facts are true to the best of my knowledge and belief,” i. e., so far as I know, I believe them ; but I do not and dare not swear to any of them as of personal knowledge. It is the habit of men, when they are in doubt or lack knowledge of what they swear to, to add this qualification to an oath, that they may save themselves from the consequence of perjury, and this habit does save them. Now what was Eowley likely to have known? He swears that on April 12, 1871, anywhere from four to six weeks after Hayward had left, he was. an agent for Hayward’s former landlord, and then in charge of premises that Hayward had occupied ; not that be, as such agent, had anything to do with Hayward, or had a right to collect rent from him, and it is not to be assumed that he had such relation or right. For aught that appears he had never known of Hayward till April 12, 1871. It would be safe to infer that this agent had charge of an untenanted bouse, and that is all. . Yet in his peculiar way he swears to facts occurring at some time during six weeks before, and that Hayward didn’t tell the landlord of his intention to remove (where is the landlord’s affidavit or even his statement to affiant on this subject?), and didn’t tell affiant, who, for aught that appears, was a perfect stranger to him. There is no pretense that the rent had not been paid. It may have been payable in advance, and paid in fact; there is no presumption to the contrary. Eowley knew that the premises were vacant; the rest is not even presumptively within his knowledge; and he guards himself by the precautionary clause. Secrecy and suddenness, without a fact showing either, are not to be taken as proved by an affidavit thus guarded. They are surmises on their face.
    III. Even assuming that all the facts suggested by the affidavits are true, there is not enough to sustain the order. The intent is to be made out, not to be assumed because it was possible. There must be surrounding facts and circumstances to characterize the removal as fraudulent. Here is no suggestion of insolvency, hardly one of debt; the man was arrested in the county of Kings, showing that he came back; he had a right to remove from the State; the furniture may have been of small value ; may not have belonged to him, but to his wife; he may have had other property in abundance ; if he had paid the rent his landlord could not complain ; it was of no importance to notify him of the removal; the fire was a calamity; the collection of insurance was a proper act; the retention not presumptively wrong; .what part of the insurance money his partner collected does not appear, nor whether" Hayward collected the whole; there may have been money enough besides the amount collected to pay all debts of the firm, in which case he was not bound to apply this money in that way. Besides it does not appear that he owed any debt except this of two hundred and ninety-four dollars—and even this he had not refused to pay ; indeed, it was not due when he changed his residence (Watson v. McGuire, 33 How. Pr., 87; Flour City Nat. Bank v. Hall, Id., 1, G. T., per Welles, J.; Balloughey v. Cadot, 3 Abb. Pr. N. S., 122; De Weerth v. Feldner, 16 Abb. Pr., 295, G. T., per Daly, F. J. ; Mott v. Laurence, 17 How. Pr., 559, G. T., per Daly, F. J.).
    W. The court will not sustain the practice of procuring from a judge in the hurry of chamber business an order of arrest based upon hearsay, and then treat facts thus alleged as true until defendant disproves them.
    Y. In Clason v. Morris (10 Johns., 524-530), the chancellor says : “The deposition of Stansbury declares the facts he stated to the best of his Tcnowledge and belief, without mentioning whence his knowledge was derived or his belief deduced, or how much of his testimony is to be referred to his knowledge and what part to his belief. The established rule is to detail the manner by which the witness acquired his knowledge, and to give the reasons of his belief, to induce the court to believe with him. There is no measure for a deposition of this nature. It must depend upon the degree of credulity of the witness, the estimate of which is not a task to be imposed on the court. This, therefore, was no evidence at all.”
    
      Cross & Holt, for plaintiff, respondent.
    —I. Appeals from orders denying motions to vacate orders of arrest, based on plaintiff’s affidavit alone, and when made after the party arrested is out on bail, are not to be regarded favorably by an appellate court (Moers v. Morro, 29 Barb., 361; Woodward Steam Pump Co. v. Stokes, 33 How. Pr., 396).
    II. It is necessary to show by affidavits iff applying for an ordinary order of arrest for the removal of property with intent to defraud creditors: (1.) That, is a permanent removal, not a temporary visit (Brophy v. Rodgers, 7 N. Y. Leg. Obs., 152). (2.) That' the removal was effected secretly. The secrecy of the removal, not the removal, merely evinces fraud (2 Code Rep., 51; City Bank v. Lumley, 28 How. Pr., 397). That the removal by defendant, Hayward, was intended to be permanent is shown by the fact that he took away his household furniture and his family, and left his home in Brooklyn entirely empty (Affidavit of Rowley). That the removal was secret also appears by the fact, that he took away his family and furniture, and left the premises untenanted, withont notice to the landlord or to the agent in charge of the house, in the midst of the quarter, with the lease unexpired.
    III. The affidavits are direct and positive in all material points. It was urged by defendant’s counsel on the argument at special term, that the final sentence in Rowley’s affidavit: “That the foregoing facts are true to the best of my knowledge and belief,” vitiated the whole affidavit. But the words are not “information and belief,” but “knowledge and belief.” Every affidavit, however positive the knowledge of affiant, ought to be taken in that form, and nine-tenths are sworn to in those words, although the officer administering the oath usually omits to write out the words in which the oath is taken. Indeed, such a sentence at the end of an affidavit not only does not indicate that the affiant speaks from mere information, but is the precise language which most persons would employ in affidavit to indicate that their knowledge was personal and positive.
    IV. The allegation in paragraph 6 of Bowen’s affidavit is also to be considered. It is positively sworn to by Bowen, that a fire occurred at defendant’s store after the note was given and before its maturity, which largely injured the stock and property in the store, and that Hayward had obtained large sums of insurance money due defendants by reason of the fire, prior to the said removal of his family and furniture. How, whether he had accounted to his partner or not, certainly he would himself retain some share in this money, if not the whole, and the fact that he had obtained money and immediately after secretly removed to Boston, is enough to show a fraudulent removal, especially when the statements are uncontradicted and admitted, as they must be held to be for the purposes of this appeal.
    
      
       Compare the preceding case of Moller v. Aznar.
    
   By the Court.—Thompson, J.

The question raised upon this appeal is as to the sufficiency of the affidavits upon which the order of arrest was granted, against the defendant Hayward.

His counsel claims that they were entirely insufficient, and that the general term of this court should therefore reverse the order of the judge granting the order of arrest.

At this stage of the case, where the defendant has had full opportunity to meet and explain the facts and allegations contained in the original papers, the import of which may be somewhat uncertain, it seems to me they may fairly be given the construction most strongly against the defendant.

In this case a promissory note was given for about three hundred dollars, payable in a single month from its date.

After such note was given, and before its maturity, a fire occurred on the premises of the defendants, largely damaging the stock and property of the defendants, and large sums of money were obtained from the insurance of said property by the defendant Hayward, who kept the same from his partner and refused to pay the firm debts therewith.

The said Hayward, although leasing his house in Brooklyn until the first of May, 1871, in March prior thereto, secretly and suddenly abandoned said house and privately removed his family and furniture therefrom, to the city of Boston, leaving the said house untenanted without any notice to the landlord or his agent

These facts, when grouped together, a,ppear to me to be amply sufficient to sustain the order of arrest.

Avery just criticism is made by.the defendant’s counsel, upon the want of positive allegation of the facts set forth, and the neglect to give definite information of the sources of information by the persons making the affidavits, upon which the order of arrest was granted. But even admitting such defective allegations, it seems to me there is still a basis sufficient at this stage of the case to uphold the order of arrest.

The allegations as to the giving of the promissory note, the time of its maturity and the fact that just prior to its maturity, the stock and property of the defendants were largely damaged, and that large amounts of money were received form certain insurance companies are positively alleged, and for the purposes of this motion must be considered as within the personal knowledge of the person making the affidavit.

The fact of the abandonment of the residence of the defendant, Hayward, in the city of Brooklyn, and the removal of his family and furniture to a distant place—• namely, the city of Boston—may be construed as a positive allegation, leaving the final clause with which the same is coupled, that such removal was without the permission or knowledge of his landlord or agent, as an allegation founded upon information derived from Rowley, the agent, from such landlord.

The final clause in the affidavit of the agent, Rowley, stating that the facts set forth in his affidavit are true to the best of his knowledge and belief, though weakening in its character, does not entirely destroy the force of such allegations.

They relate to facts, some of which, as with reference to his own agency and the location and the ownership of the property and the residence of the defendant and the time of the expiration of his lease, must have apparently been within his personal knowledge, and the whole of such allegations are with reference to a business directly under the supervision and control of the person making such affidavit.

It seems to me that there is enough in these affidavits, when not contradicted or explained, to raise the presumption of such a fraud, either consummated or intended, as to authorize an arrest.

There was apparently enough to call upon the defendant for some explanation or denial, and as he has not done this, I think the order of arrest should be maintained, and the order denying the motion to vacate the order of arrest should be affirmed with costs.

Jíeilsoh, J., concurred.  