
    DICKINSON a. BENHAM.
    
      Supreme Court, First District;
    
    
      Special Term, April, 1860.
    Attachment.—Motion to Vacate.
    Where defendant moves to vacate an attachment solely on the original affidavits, plaintiff cannot offer new affidavits in resisting the motion, even to show as a preliminary objection that the defendants have parted with their interest in the property attached.
    
      It seems, that the fact that since the attachment has been levied, the defendants have assigned their interest in the property attached, does not affect their right to move for a discharge of the attachment for insufficiency in the papers on which it was granted.
    Defendants, when called upon to give security for their debt to the plaintiff, stated that if the demand were sued, they would make an assignment; and that they owed a larg? amount of confidential debts which they should first provide for.
    
      Held, that this was no evidence that they were about to dispose of their property with intent to defraud creditors, and that an attachment granted solely on this fact must be vacated.
    Motion to vacate an attachment granted as a provisional remedy.
    
      C. D. Newman, for the motion.
    
      H. Brewster, opposed.
   Bonney, J.

—On the 14th January, 1860, the warrant of' attachment was issued in this action, on allegations that defendants were about to dispose of their property, with intent to defraud their creditors. (Code, §229.)

The defendants, on summons, affidavit, and warrant, now move to set aside the attachment, with costs, on the ground that the affidavit does not state facts sufficient to authorize it.

The plaintiffs, as a preliminary objection to the motion, offer to show by affidavit that the defendants, on the 21st of January, 1860, made an assignment of all their property for the benefit of their creditors, giving preferences, and insist that defendants have consequently no present interest in the property attached, and, therefore, cannot make this motion. I do not think this affidavit can be received, nor, in my opinion, would this objection avail if the supposed fact appeared. The Code, section 241, gives defendants the right to move to discharge an attachment, as in the case of other provisional remedies, and I understand the rule to be as to all provisional remedies, that the persons against whom they are taken may remove to vacate them on the ground that the papers on which they were allowed were insufficient, and that the remedies or process were illegally or improvidently granted.

The authorities on which plaintiffs rely, at the utmost only decide that the party against whom an attachment is issued, cannot move its discharge, when he had no interest in the property attached at the time when the attachment was issued or levied,—which is not the case.

Additional affidavits are also offered by plaintiffs to sustain the attachment; to the reception of which defendants’ counsel objects. I have examined the authorities cited by plaintiffs’ counsel to sustain his offer, and, following the case of Wilson a. Britton (6 Abbotts’ Pr. R., 33), hold that affidavits in opposition to a motion to set aside an attachment, are to be received only to explain or contradict affidavits offered by the moving party.

In this case the motion is made on the original affidavits alone, and consequently no affidavits on the part of the plaintiffs are admissible.

The only facts, stated in the original affidavit, to sustain the allegation that defendants were about to dispose of their property, with intent to defraud their creditors, are, that, when defendants were called upon to give security for plaintiffs’ demand, or part of it, they refused, “ and then stated that if the plaintiffs demand were sued, they would make an assignment / and that they owed a large amount of confidential debts which they should firstprovide for.” The law of this State allows debtors to make an assignment of their property for the benefit of their creditors, and to give preferences in payment; and it appears to me that this statement, fairly construed, amounts only to a declaration, that in case an action was commenced by plaintiffs, the defendants would exercise this legal right; and I cannot consider such declaration any evidence that defendants were about to dispose of their property, with intent to defraud creditors.

The case of Wilson a. Britton (6 Abbotts' Pr. R., 97) is direct authority for this decision.

The motion is granted, with ten dollars costs.  