
    The West Side Bank, Resp’t, v. Frank C. Meehan, App’lt.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed November 18, 1892)
    
    1. Attachment—Proof of fraud.
    In order to establish fraud for the purpose of the issuing of an attachment,'the evidence must necessarily tend to establish a probability of guilt and be inconsistent with innocence.
    
      2. Same—Appeal—Objections.
    An objection to the reading of additional affidavits on motion to set
    aside an attachment cannot be raised for the first time on appeal.
    Appeal from an order denying a motion to vacate or set aside an attachment.
    
      W. M. Safford, for app’lt; Henry Daily, Jr., for resp’t
   Van Brunt, P. J.

It seems to be assumed by the counsel for the respondent, and he seems to be fortified in his assump. tian by a few precedents, that, in order to establish fraud foi the purpose of the issuance of an attachment, a different rule prevails as to the weight of evidence from that which prevails in the case of an action based upon fraud. It is familiar law that, in order that an action may be maintained for fraud, the plaintiff must show affirmatively facts and circumstances necessarily tending to establish a probability of guilt; but, if the evidence is capable of an interpretation equally consistent with innocence as with guilt, the former meaning must be given to it. Therefore, the evidence must be of greater weight than simply to justify a conclusion of guilt. It must necessarily tend to establish a probability of guilt, and be inconsistent with innocence. This rule also prevails in respect to. provisional remedies, and is just as stringent as in an action. This is expressly-held in the case of Morris v. Talcott, 96 N. Y., 100, and, if it had not been so held, it must be apparent that there is no reason that, in the pursuit of a provisional remedy, a defendant should be branded with fraud upon lighter evidence than would be sufficient to maintain an action upon that ground. Attachments and orders of arrest cannot be maintained upon mere presumption. In the case at bar the original affidavits were clearly insufficient to justify the issuance of the attachment. The allegations of fraud were made upon information received from a third party, and no reason whatever is given for the failure to produce his affidavit. The affidavits subsequently read, however, showed the sudden withdrawal from defendant’s bank, and the existence of deposits in savings banks, fortifying the information received by proof of actual facts necessarily-tending to show a withdrawal of property not for the purposes of business. It is true that it is now objected that the respondent should not have been permitted to read these additional affidavits. But the difficulty .is that this objection now comes too late. It does not appear to have been raised in the court below. If it had been, we think it would have been error to have allowed these affidavits to be read. It is true it is claimed in appellant’s points that these affidavits were read over defendant’s objection, but we cannot find any objection in the record, and consequently cannot consider the same. The order appealed from should be affirmed, with ten dollars ■ costs and disbursements.

O’Brien and Barrett, JJ., concur.  