
    James A. Bendure, Plaintiff, v. Alfred C. Bidwell and International Automobile League, Defendants.
    (Supreme Court,
    Erie Special Term,
    August, 1913.)
    Attachment — motion to vacate — affidavit on which attachment granted — in action for libel — departure from state to avoid service of summons.
    Where a defendant moves to vacate a warrant of attachment solely on the affidavit upon which it was granted, plaintiff is entitled to all the inferences that can legitimately be drawn from the facts stated.
    Where in an action for libel, no question arising as to the sufficiency of the pleadings, it is shown by affidavit to the satisfaction of the judge granting the warrant of attachment that, defendant is a natural person and a resident of this state and has departed therefrom to avoid the service of a summons, or keeps himself concealed therein with like intent, and not only are the moving affidavits in no way controverted but there are no answering affidavits, a motion to vacate the warrant of attachment because of the insufficiency of the affidavits will be denied.
    Motion to vacate a warrant of attachment.
    Corcoran & Corcoran and Henry W. Killeen, for the motion.
    Kimball & Stowe, opposed.
   Woodward, J.

This is a motion on the part of the defendant Bidwell to vacate a warrant of attachment upon the grounds that the affidavits upon which the attachment was granted wholly fail to state facts sufficient to justify the court in holding that the defendant had left the state to evade the service of a summons or was concealed within the state to evade such service, and that the complaint does not state a cause of action. The action is' for libel, alleged to be contained in a circular letter sent out by the defendants Bidwell and the International Automobile League, and an examination of the complaint shows conclusively that the same is not open to the objection urged. Whether the language of the circular letter is libelous per se or not is not material at this time, for the complaint alleges that it was ‘‘ circulated widely throughout the United States and Canada; that in so doing and making the false and defamatory statements aforesaid of and. concerning the plaintiff therein contained, defendants were actuated by actual malice and ill-will toward the plaintiff and intended to harm him in his business and his professional standing,” and there can be little question that this is a statement of fact which calls for submission of the issue to the jury if the case is litigated. Indeed this seems to be practically conceded by the defendant upon this motion, and we shall consider merely the question of the sufficiency of the affidavits.

Under the provisions of section 636 of the Code of Civil Procedure it is necessary in procuring a warrant of attachment in a case such as that now before us to show, by affidavit, to the satisfaction of the judge granting the same,” that one of the causes of action specified in the last section exists against the defendant,” and being a natural person and a resident of the state, “ that he has departed therefrom, with intent to defraud his creditors, or to avoid the service of a summons, or keeps himself concealed therein with the like intent.” This requirement has been met; it has been shown to the satisfaction of the judge granting the writ,- and by affidavit, that the defendant is a natural person and a resident of the state, and that he has departed from the state to avoid the service of a summons, or keeps himself concealed therein with the like intent, and upon this motion we are required to determine whether the affidavits are sufficient to justify this conclusion. The moving affidavits are not controverted in any manner; there are no answering affidavits submitted. We are merely asked on this motion to review the discretion of the judge granting the warrant, and to hold that facts stated in the affidavits were not such as to warrant the original determination, and, unless this is so obvious as to justify the conclusion that the action on the part of the judge in granting the warrant was inadvertent, it would not comport with the orderly administration of the law to grant the relief demanded.

We have already indicated that there is no question of the sufficiency of the pleadings. We are equally clear that there is nothing to warrant the setting aside of the warrant of attachment. The affidavit of George 0. Biley sets forth that he is an attorney for the Northland Bubber Company, and that as such attorney he brought an action against the International Automobile League, Alfred C. Bidwell, James J. 0 ’Shea and others as defendants to recover an affirmative judgment for damages and to obtain an injunction, and that on the 9th day of July, 1913, a temporary injunction was granted, containing, an order requiring the defendants to show cause on the 15th day of July, 1913, why said injunction should not be made permanent during the pendency of the action; that on said day a summons was duly issued in said action and, with the other papers, was placed in the hands of Edward J. Altschaft for service upon the defendants ; that on the 10th day of July, 1913, said summons and other papers were duly served upon the defendant International Automobile League by leaving the same with James J. O’Shea, who was at the time the general mánager of such league, and of which the defendant Alfred C. Bidwell was the president; that continued efforts have been made to serve the said Alfred C. Bidwell with the papers in that case; that upon the return day of the said order to show cause deponent personally appeared at Special Term at the opening of court and the said James J. O’Shea appeared by counsel; that there was no appearance for the defendant International Automobile League or the defendant Alfred C. Bidwell.

Edward J. Altschaft makes an affidavit setting forth in detail the efforts made by him to serve the papers in the injunction action on Mr. Bidwell. He tells us that he went to Rochester at the request of the North-land Rubber Company, his employer, and finally found Mr. Bidwell registered at the Hotel Seneca; that he visited the room assigned to Mr. Bidwell and found his baggage there; that he waiied about for several hours; that he went out to get something to eat and that on returning a half hour later he found that the baggage of Mr. Bidwell had been removed and that Mr. Bidwell had left the hotel without paying his bill; that Mr. Bidwell sent a letter to the Hotel Seneca asking to have his bill sent to Ms business address in Buffalo, and that all subsequent efforts to find Mr. Bidwell were unavailing until he was finally located, at the Clifton Hotel at Niagara Falls, Ontario, on the fourteenth day of July, and it does not appear that he has since been within the jurisdiction of this court. In tMs day of telephones and telegraphs, with Mr. Bidwell a guest, of one of the leading hotels at Rochester, and the general manager of his business in the city of Buffalo, served with papers in an action for damages and an injunction involving his company, it is not creditable to our intelligence to suggest that Mr. Bidwell was not aware of the fact that he was wanted in the action, and his conduct in leaving his hotel without paying his bill, his disappearance from view from the eleventh to the fourteenth day of July,, and his appearance in a hotel outside the jurisdiction of this court, though within easy speaking distance of his office, all tend irresistibly to point to the conclusion that he was in the act of avoiding the service of process. Add to these the affidavit of Andrew Kick, deputy sheriff, showing his diligence in trying to serve the papers in the present action, and we have a very complete case within the letter and the spirit of the statute, and one which fully justifies the court in making use of the warrant of attachment. The presumption is, of course, that the deputy sheriff did his duty; that the places which he visited, upon such information as he was able to gather, were the most probable places for Mr. Bidwell to be found, and the suggestion that the affidavit fails to disclose that there were reasons for looking for him in these places is not entitled to any very serious consideration where there is no effort to show that Mr. Bidwell was available, or that he was in good faith away from home and his business temporarily, and with no intention of evading process. All that the law requires is that the information furnished by the moving papers shall be such that a person of reasonable prudence would be willing to accept and act upon it (Brandly v. American Butter Co., 130 App. Div. 410), and the same authority says that where a defendant moves to vacate an attachment solely upon the affidavit upon which it was granted, the plaintiff is entitled to all the legitimate inferences and deductions that can be made from the facts stated.

The motion should be denied, with ten dollars costs.

Motion denied, with ten dollars costs.  