
    Ackley P. Tuller et al., Respondents, v. James Howard, Appellant.
    (County Court, Oneida County,
    May, 1896.)
    1. Attachment — Departure with intent to defraud creditors.
    An affidavit stating that defendant had left the state for a few days without leaving his address; that he stated that there were no bills to ■ be paid, and that several had since been presented, is insufficient to sustain a claim that he had departed from the state with intent to defraud his creditors, where it appears that- the summons was served upon him at his home on the day that he had stated he would return.
    
      2. ' Appeal — Grounds for reversal.
    An error in refusing to vacate an attachment furnishes no ground for a. reversal of the judgment bn the merits. ' . .
    Appeal from judgment in favor of the plaintiffs.
    D. F. Searle, for appellant.
    S., M. Stevens, for respondents.
   Dunmore, J.

An attachment was granted by the justice, in this case, on the ground that defendant, being a natural person, and á resident of the state of Hew-York, had departed therefrom with intent to defraud his creditors'. The affidavit of defendant’s clerk, upon which the attachment was granted,, showed that defendant,, who was a retail grocer, had, on the 8th day of September, 1895, left his store, in Rome, U. Y., in charge of said clerk, telling him that he was going to Wilmington, Delaware, and would be back Friday night or Saturday morning, September 13th or 14th. That the clerk asked • defendant ‘ for his address, but ' he failed tO' leave it. That defendant told the clerk that there were no bills payable, and if the clerk needed anything for the store he could get it in. town at one of the wholesale stores. That from bills presented against defendant, it appeared that there were bills owing, due and unpaid, to the amount of> at least, $515. That various bills against defendant have been presented since his departure. ■ That a sight draft - has. been presented for payment. That said bills and. drafts had been presented to said clerk since defendant’s departure. That defendant had not returned or in any way'communicated with the cleric since his departure. "The foregoing facts .were stated in the affidavit of the clerk. One of • the plaintiffs made an affidavit, in which he stated that defendant was a natural person, etc., and had departed from the county of Oneida and state of ¡New York, with intent to defraud his creditors; as more fully appears from the annexed affidavit of Howard M. Thayer, the clerk. This was all the evidence to sustain the attachment. Upon the other hand, the constable’s return showed that the summons was personally served upon defendant in the city of Rome, ón the 14th day of September, 1895, the very day the affidavits of plaintiff were verified, and the very day that defendant had.stated that he should return to his home. Upon these facts defendant, on the return of the summons, moved,, before, the justice, to vacate the attachment. This motion should have been granted. There was no evidence to sustain the claim that defendant had departed from the county and state with-intent to defraud his creditors. I do not discover that any other .substantial error was committed by the justice at the time of the trial.

In Bump v. Daheny, 36 N. Y. St. Repr. 114 ; S. C., 59 Hun, 619, it was held by the General Term of this department that an error committed by the justice in erroneously refusing to vacate an attachment was no ground for reversing the judgment upon the merits. The Superior Court of Buffalo, however, has held that a substantial right was affected, and the judgment should be reversed. Fritze v. Pultz, 2 Civ. Pro. 142.

I, however, regard the decision of the General Term of this department as conclusive upon this branch of the case.

As the judgment in this case can be affirmed only in part, the tiosts are regulated by section 3066 of the Code of Civil Procedure, which provides that if the judgment is affirmed only in part, the costs or such a part thereof as to the Appellate Court seems just, not exceeding $10 besides disbursements, may be awarded to either party. . As- the motion to vacate the attachment was promptly made by defendant, and as defendant has been right in' his contention, I think he should have the full allowance of costs permitted by that subdivision.

The judgment is, therefore, affirmed upon the merits of the action, but reversed so far as it sustains the attachment granted therein, with. $10 costs and disbursements, to be recovered by appellant against the réspondents.

. Ordered accordingly.  