
    Grosvenor v. Sickle.
    
      (Supreme Court, General Term, First Department.
    
    January 23, 1888.)
    Attachment—Fraudulent Transfer by Debtor—Sufficiency of Affidavit.
    An attachment" issued on an affidavit alleging that defendant, in order to induce plaintiff to sell him goods on credit, made certain representations to plaintiff, who, relying thereon, sold and delivered the "goods, and that, two days after plaintiff’s claim became due, defendant assigned all his property without consideration, should be vacated, there being no allegation or proof that the transfer was fraudulent; and it is immaterial that the affidavit further alleges that the debt to plaintiff was fraudulently contracted.
    
    Appeal from special term. ^
    Warrant of attachment issued on affidavit of James B. M. Grosvenor against Isaac Sickle. Defendant’s motion to vacate the warrant denied, and he appeals.
    
      A. Blumenstiel, for appellant. Albertus Perry, for respondent.
    
      
      Fraud will not be presumed where the facts are consistent with honesty of purpose, Clemens v. Brillhart, (Neb.) 22 N. W. Rep. 779; but must be established by evidence, Hodges v. Lassiter, (N. C.) 2 S. E. Rep. 923, and note. For a full discussion of fraud and fraudulent intent, evidence of fraud, presumptions, burden of proof, etc., see Knight v. Kidder, (Me.) 1 Atl, Rep. 142, and note.
    
   Per Curiam.

The motion was made upon the papers upon which the warrant was granted. The affidavit, after setting up the grounds upon which the cause of action arose, alleges that the defendant has assigned and disposed of his property with intent to defraud his creditors, as the affiant is informed and verily believes; and that the grounds of such belief were that in June, 1887, in order to induce the plaintiff to sell the defendant goods upon credit, he made certain representations to the plaintiff, who, relying upon such statements, sold and delivered the goods, and that, two days after the plaintiff’s claims became due, the defendant assigned and transferred all his property, of every name and nature, without any consideration therefor. The affiant further states that he is informed that the statements and representations made to the plaintiffs by the defendant as aforesaid were false and fraudulent. The affiant further states that the defendant had been engaged in business as a merchant in the city of New York; and that, since he purchased the goods from plaintiff, he had continued to purchase goods upon credit from different merchants of the city of New York, up to a few days since, and has made such purchases upon credit to a large amount, and that the defendant claims that he is now indebted to a large amount, although he has not apparently met with any pecuniary reverses since the. purchase of said goods from the plaintiff as aforesaid. Upon this affidavit the attachment was issued, and a motion was made to discharge the same, which was denied. The ground upon which the attachment was issued, appears to have been that the allegation that the defendant had assigned and transferred all his goods without actual consideration, raised the presumption that such transfer was made with intent to defraud his creditors, and that there was no reason why it should be assumed that this transfer was a general assignment in trust for his creditors, and that if it was of that character the defendant should say so. In this consideration of the affidavit in question, it would appear that the learned judge lost sight of the maxim that, if an act is susceptible of an innocent construction as well as of a fraudulent one, courts are bound to place an innocent construction upon the act, rather than to assume it to have been done with a fraudulent intent. Therefore, when the simple allegation is that the defendant has transferred his property without actual consideration, if he could make such a transfer without committing a fraud, in the absence of any further proof, we must necessarily assume that such was the nature of the transfer. If this is not the rule, then an attachment may issue, in the first instance, in every case in which an assignment for the benefit of creditors is made; and certainly such was not the intention of the statute. There seems to be no evidence sufficient to justify the court in finding that the defendant had or is about to dispose of or secrete his property with intent to defraud his creditors. The allegations in regard to the fraudulent contraction of the debt can have no weight in the consideration of this question, because they are entirely immaterial in the matters to be established in order to entitle the plaintiff to an attachment. There being nothing whatever in this case to show that this transfer was fraudulent as against the creditors of the defendant, the-motion to set aside the attachment should have been granted. The order appealed from must be reversed, and the motion granted, with $10 costs and. disbursements.  