
    Lorenzo Smith, Respondent, v. Marvin Holt, Appellant.
    
      Attachment—possession by a third person of pyroperty levied on is evidence of his title thereto — transfers by the debtor cannot be assailed unless the justice had jurisdiction to issue the attachment •—•insufficiency of moving affidavits.
    
    The fact that personal property is in the actual possession of a third person, at the time that it is levied upon under an attachment issued by a justice of the peace, is sufficient evidence of title thereto in the third person to enable him to maintain an action of conversion against the constable levying the attachment.
    In such an action the defendant cannot attack the validity of the plaintiff’s title or the validity of the sale of the attached property from the attachment debtor to his wife or from the latter to the plaintiff without first showing that the justice who issued the warrant of attachment under which the levy was made had jurisdiction.
    Affidavits, presented to a justice of the peace upon a motion for a warrant of attachment, made by a salesman of the plaintiff to the effect that the sum claimed was due over and above all counterclaims known to the deponent, and by an assignor of the plaintiff to the effect that the amount of the assigned claims was due to the assignor at the time of the assignment over and above all payments and counterclaims, are insufficient, under section 2906 of the Code of Civil Procedure, which provides that the affidavits must show that the sum claimed in the action is due over and above all counterclaims known to the plaintiff.
    
    An averment made in an affidavit used on such a motion, to the effect that the defendant had absconded from the county on account of a criminal charge, does not show that he left in order to defraud creditors, but rather the contrary.
    Appeal by the defendant, Marvin Holt, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of St. Lawrence on the 12th day of May, 1898, upon the verdict of a jury, and also from an order bearing date the 2d day of May, 1898, and entered in said clerk’s office, denying the defendant’s motion for a new trial made upon the minutes.
    The action was brought to recover for the alleged conversion of goods taken by the defendant, a constable, from the possession of the plaintiff under a warrant of attachment issued by a justice of the peace against Wallace H. Kenyon.
    
      Charles H. Searle, for the appellant.
    
      Joseph George, for the respondent.
   Putnam, J.:

It was shown that the plaintiff was in the actual possession of the property described in the complaint at the time of the seizure thereof by the defendant under the warrant of attachment. This was enough without any other evidence of title to authorize the maintenance of the action. ( Van Etten v. Hurst, 6 Hill, 311, 312; Wheeler v. Lawson, 103 N. Y. 40; Stowell v. Otis, 71 id. 36.)

The plaintiff being thus in the possession of the property at the time of its seizure by the defendant under an attachment against a third party, the defendant was not in a position to attack the plaintiff’s title or the validity of the sale from Wallace H. Kenyon and his wife, or from the latter to the plaintiff, without showing the jurisdiction of the justice who issued the warrant of attachment under which the defendant assumed to take the property. (Decker v. Bryant, 7 Barb. 182; Van Etten v. Hurst, supra; Davis v. Marshall, 14 Barb. 96 ; Halsey v. Christie, 21 Wend. 9; Van Kirk v. Wilds, 11 Barb. 520 ; Tiffany v. Lord, 65 N. Y. 310.)

The case is different where the officer granting the attachment had jurisdiction, but the warrant is' afterwards vacated for error. Day v. Bach, 46 N. Y. Super. Ct. 460; Lux v. Davidson, 56 Hun, 345, 348, 350.)

The authorities cited by the learned counsel for the appellant, holding that a ministerial officer is protected by process regular on its face, although issued without jurisdiction, are not, we think, applicable to a case like this, where the officer under an attachment against the property of Kenyon claimed to hold the property of the plaintiff who was not a party to the action in which the attachment was issued. (See Noble and Eastman v. Holmes, 5 Hill, 194; Sheldon v. Van Buskirk, 2 N. Y. 473.)

It will be observed that the trial court, although holding that the defendant was not in a position to attack the validity of the transfers of the property in question to the plaintiff, permitted him to show, if able to do so by competent evidence, that no transfer was in fact made.

It is well settled that a court or officer is without jurisdiction to issue a warrant of attachment when the affidavits presented to him are defective. (See Clearwater v. Brill, 61 N. Y. 625.) We are of the opinion that the trial court did not err in holding that the attachment issued in the Justice’s Court in the action in favor of Thomas-R. and Frank E. Thomas against Wallace E. Kenyon, under which the defendant claimed the property in question, was a void process. It was issued on the ground “ that said defendant has assigned and disposed of, and is about to assign and dispose of, his property with intent to defraud his creditors; has departed from Grouverneur and keeps himself secreted with intent to avoid service of process and summons, and has absconded from Grouverneur, his past place of business and residence.”

Three affidavits were filed with the justice to obtain the warrant. Under section 2906 of the Civil Code it was requisite that the affidavit or affidavits should show that the sum claimed in the action was due over and above all counterclaims known to the plaintiff. One of the affidavits in question, that of John B. Wright, a salesman of the plaintiff, stated that the sum claimed was due over and above all counterclaims known to deponent. The only other affidavit as to a counterclaim, that of Charles A. Woodward, a salesman of Stevens & Lockhart, whose claim of fifty-six dollars and seventy-one cents assigned to the plaintiff, formed a part of the demand the plaintiff .sought to recover, stated that said amount of fifty-six dollars and seventy-one cents was due and owing to said Stevens & Lockhart at the time of the assignment of the claim over and above all payments and counterclaims. This affidavit did not show or tend to show whether or not the defendant Kenyon had counterclaims against the plaintiffs in the action, or any knowledge in that regard. The affidavits in the regard stated were insufficient. (Hart v. Bernau, 22 N. Y. Sapp. 296; Lyon v. Blakesly, 19 Hun, 299; Thorington v. Merrick, 101 N. Y. 5.)

The affidavits also failed to show that the defendant Kenyon had assigned or disposed of his property with intent to defraud creditors, or intended to do so; or that he had absconded or kept himself concealed with a like intent. The affidavit of John W. Wright merely says tnat he had called at the defendant’s late place of business, and that he was not there, and could not be found, and his store was closed. The conversation that he related he had with the defendant’s wife was not material. All the other statements in his affidavit were merely upon information and belief, without stating the source of his information or the grounds of his belief. The affidavit of Eli P. Bacon states that on September 15, 1897, he had a warrant for the arrest of the defendant on a criminal charge, and that on the evening of that day the defendant absconded; that defendant’s place of business was closed. All the other allegations in his affidavit are upon information and belief, without stating the source thereof or the grounds of his belief. The averment in the affidavits, that the defendant had absconded from the county on account of a criminal charge, do not tend to show that he left to defraud creditors, but rather the contrary. (Thames & Mersey Marine Ins. Co. v. Dimmick, 22 N. Y. Supp. 1096.) Thus, the only facts shown in the affidavits on which the warrant of attachment was issued by the justice were that the defendant’s place of business was closed ; that his wife stated she would continue business in his place; that the defendant had absconded in consequence of a criminal charge. It is clear that the trial justice was right in determining that the affidavits were insufficient to confer jurisdiction.

We have examined the various exceptions taken on the trial, and are of the opinion that neither of them call for a reversal of the judgment.

The judgment and order should be affirmed, with costs.

All concurred.

Judgment and order affirmed, with costs.  