
    Donnelly Contracting Co. v. Stanton.
    (Superior Court of Buffalo—Special Term,
    December, 1893.)
    An attachment should he vacated when it rests solely upon alleged declarations of defendants to the effect that they would not have money to pay plaintiff or any of their creditors, and that they intended to sell the goods received hy them, and would not have money enough to pay any of their creditors, and would not pay them, and that plaintiff could stand it, all of said statements taken together being consistent with innocence.'
    Motion to vacate an attachment.
    
      John Hubbell, for defendant.
    
      George B. Webster, for plaintiff.
   Hatch, J.

The attachment in this action was issued upon the ground that the defendants were about to dispose of their property with intent to cheat and defraud their creditors. The motion to vacate is based upon the ground, among others, that the proof is insufficient to establish the charge. The proof of fraud is contained in an affidavit of a third person, and reads:

'“State oe New Yobk,'|
Gou/rvby of Erie, j- ss.:
Gity of Buffalo, J
“ John Beedy, being duly sworn, deposes and says, that he resides in the city of Buffalo, New York, at No. 140 South Michigan street; that he knows J. W. Stanton and Samuel N. Amm, composing the firm of J. W. Stanton & Co., of .said city, and have transacted business with them; that he •also knows the Donnelly Contracting Company, and the officers thereof; that the said firm of J. W. Stanton and Company have been engaged in clearing the property on which the Ooatsworth elevator was situated before it burned in August, 1893; that he has heard conversations between said Stanton, Amm and others in their employ, and that in said conversation said Stanton and Amm have said that they did not and -would not have the money to pay the said Donnelly Contracting Company or any other of their creditors, and that they intended to sell the iron received by them from the ruins of the Ooatsworth elevator.
“ Deponent further says that said Stanton and Amm have' said in deponent’s presence that they would not have money to pay any of their creditors, and would not pay them, and that the said Donnelly Contracting Company had a large office and could stand it. JOHN REEDY.
'“ Sworn to before me this 13th .1 day of December, 1893. I
“ E. J. Plumley,
Notary PiiblieP

The words from which fraud is to be inferred rest in the statement of declarations made by 'defendants, to the effect that they would not have money to pay plaintiff or any of their creditors; that they intended to sell the iron received by them, and would not have money to pay any of their creditors, and would not pay them, and that plaintiff could stand it. No allegation is made or proof given that defendants have committed any act with respect to any property owned or controlled by them, which lend color to the inference of fraud. The attachment, therefore, rests solely upon the alleged declarations. The declaration that they would not have money with which to pay plaintiff and their other creditors does not show fraud or tend to show it. The mere inability to pay for lack of money would at one time or another have involved nearly every person carrying on business, and the most perfect honesty can exist without ability to. pay. The further declaration, that they intended to sell the iron, and would not pay their creditors, and would not have money to pay any of their creditors, is still consistent with an innocent intent; it does not appear how much iron there was to sell, or what its value was, and' it might he entirely true that all of the proceeds derived therefrom would he insufficient to pay any of their creditors, and-would still leave them without money wherewith to pay, as the whole proceeds might be exhausted in marketing it. Giving full force to all the statements made, they are consistent with a reason for not paying based solely upon a lack of money with which to pay.

In order to establish a fraudulent intent, the allegations, must necessarily tend to establish a probability" of guilt. Morris v. Talcott, 96 N. Y. 107.

The' evidence tending to such result must be adequate to. sustain a verdict based on fraud. West Side Bank v. Meehan, 20 N. Y. Supp. 766; Stow v. Stacey, 30 N. Y. St. Repr. 308.

Ho strength is added to the statements that plaintiff had a large office, and could stand it. This may have been a consoling reflection to the debtors, that although they were unable to pay, yet the plaintiff would not suffer actual want from such fact, hut it is far from showing that they willfully intended to cheat plaintiff because it could stand it.

All of the statements, taken together, being still consistent with innocence, the attachment based thereon must fail. The order is that the attachment be vacated and set aside, with ten dollars costs of motion.

Attachment vacated.  