
    Chambers & McKee Glass Company, Appellant, v. David H. Roberts, Respondent.
    
      Attachment — the insanity of the .defendant is inconsistent with, Ms leaving the State With intent to defraud creditoi's — the proof required in such a case,.disiingv0héd‘ from proof as to the merits of the action.
    
    Upon an appeal from an order vacating an attachment Obtained by the plaintiff, it appeared that the action was brought to recover a sum of money only, and ".that the attachment .was granted upon the sole ground that the defendant had ■departed from the State of Few York with, intent to defraud his creditors. The motion to vacate was made on affidavits .upon the part of the defendant tending to show clearly that when he left the -State he was in .a condition .of insanity amounting almost to mama, and . was opposed- by new proof on the part of the plaintiff in support of his causé of action, which, although of a kind not admissible under the Code, ryas received without objection;
    
      
      Held, that although the new proof offered hy the plaintiff was of a character not admissible under the Code, yet as it was received without 'objection the court could consider the new facts which tended to sustain the plaintiff's cause of action;
    That the- question relative to the insanity of the defendant did not affect the merits of the case, and that it was the duty of the court to decide the question upon a fair preponderance of the evidence as given by the affidavits;
    That, in order to enable the plaintiff to procure a warrant, upon the ground that the defendant had left the State with the intent to defraud his creditors, he must prove that he took his departure with the actual existing intent-of defrauding his creditors;
    That where it is necessary to prove an actual intent upon, the part of a lunatic, the existence of which intent is not inferable from the act itself, the fact of lunacy may be sufficient to disprove the existence of the intent;
    That in the present case the facts justified the court in inferring that the insane man was unable to form the intent with which he was charged.
    Appeal by the plaintiff, the Chambers & McKee Glass Company, from an order of the Supreme Court-, made at the Hew York Special Term and entered in the office of the clerk of the county of Hew York on the 17th day of February, 1896, vacating and setting aside an order of attachment against the defendant’s property theretofore granted in the action.
    
      John C. Coleman, for the appellant.
    
      Otto Horwitz, for the respondent.
   Rumsey, J.:

The action was brought to recover a sum of money only, and a warrant of attachment against the property of the defendant was granted upon the sole ground that he had departed from the State of Hew York with intent to defraud his creditors. The motion to-.vacate the attachment was made by the defendant upon affidavits, under the authority of section 683 of the Code of Civil Procedure, and it Was opposed by new proof on the part of the plaintiff, by which it was made to appear that a cause of action existed against the defendant. .While, strictly speaking, the proof uponthat subject was not admissible under the provisions of the Code, which permit new proof to be offered by the plaintiff to sustain any ground for the attachment recited in the warrant, and no other, yet the affidavits were-received without objection, so far as appears from the papers, and it was, therefore, proper for the court to consider the facts stated in them, tending to sustain the attachment. (Godfrey v. Godfrey, 75 N. Y. 434.) Upon considering all the affidavits it is quite clear that a cause of action existed against the defendant, and for that reason the decision'-upon the motion of the junior attaching creditor to vacate this, warrant as against him, which was made at the February Term, does not apply. ' '

The question presented .by the affidavits upon which this motion was heard, is whether, Upon the whole case, it could be said that the defendant departed from the State with intent to defraud his creditors. The decision of that' question required the court to pass upon the question whether or not the proof showed that, the defendant, when he left this State, was insane, so that lie was not able to form any intent, and, therefore, that the ground stated for granting the writ did not in fact exist. This did not involve, in any aspect of the case, the merits of the action, which was brought simply to recover a debt Where a motion is made to vacate an attachment lipón contesting affidavits, and the only question presented is whether, upon all the' facts, the plaintiff has a cause of action, and that question is one of fact and not of law,' it has been-held that the question should not be decided -upon affidavits but be left for determination at the trial. (Kirby v. Colwell, 81 Hun, 385.) Upon the state of facts presented in that case the court said that the- attachment should not be vacated, but be left' to stand or fall as the result of the determination at the trial of the main question presented by'the issues, which is also the question presented by the motion to vacate. But that is - not this case. The decision of this motion -can have no effect upon the merits of the action, because it does not involve any question which is presented by the issues raised upon the pleadings. The only thing to be decided,- therefore, is whether the facts shown Upon the motion warrant the granting of the attachment. The Gode gives to the defendant the right to move to vacate the warrant upon new affidavits, upon which both parties are at liberty to present all the facts to enable the court to decide whether the grounds upon, which the warrant is issued in fact exist. The right to move upon such papers involves a corresponding duty on the part of the court to decide the question upon a fair preponderance of the evidence as given by the affidavits. This is the rule where a motion. is made to vacate an order of arrest (Levy v. Bernhard, 2 App. Div. 336), and the same reasons require that the same rule should be held to exist in motions to vacate a warrant of attachment. It was the duty, therefore, of the court to examine the case and see whether or not the defendant’s condition was such that it could be said that he had intended to defraud his creditors when he left the State. To enable the plaintiff to procure a warrant on that ground, it is not sufficient that he should prove simply that he has a cause of action against the defendant and that the defendant has gone out of the State. He must prove that the man took his departure with the actual existing intent to defraud creditors. (Hertz v. Stuart, 3 Wkly. Dig. 332.) That intent will not be inferred as a presumption from the simple act of departure, but requires that the plaintiff should show other facts and circumstances by which the intent shall be established.

The facts and circumstances connected with the departure from the State were clearly shown in this case. It was made to appear by an overwhelming preponderance of evidence that when the defendant left the State he was in a condition of insanity, almost amounting to mania, and upon the proof it was left very doubtful whether he was competent to devise any scheme or to have any intent whatever.

Where the intent with which an act is done is one, the existence of which the law infers from the doing of the act, the fact that the person who does it is a lunatic will not relieve him from the civil liability for the damages which the act causes. But, where it is necessary to prove on the part of the lunatic an actual intent, the existence of which is.not inferred from the act itself, the fact of lunacy may be sufficient to disprove the existence of the intent. Such is the case where it is sought to charge the lunatic with exemplary damages (McIntyre v. Sholty, 121 Ill. 660), or to establish an intent with the view to punish him for a crime. The same considerations apply here. It is not necessary to say that the mere fact of insanity operates as a matter of law to disprove the intent. It is sufficient if there is made to appear a state of insanity so great that the court would have a right to infer that the insane man did not form the intent charged against him, and if that did appear it would justify the court in concluding as a matter of fact that the plaintiff had not shown the existence of the fraudulent intent which was required to authorize the granting of a warrant of attachment. The facts in this case were certainly sufficient to warrant such.a conclusion, and.for that reason the order vacating' the war^ rant must he affirmed, with ten dollars costs and disbursements.

Van' Brunt, P. J., Barrett, O’Brien and Ingraham, JJ., .concurred.

Order affirmed, with ten dollars costs and disbursements. '  