
    Kibbe et al. v. Herman et al.
    
    
      (Supreme Court, General Term, First Department.
    
    January 28, 1889.)
    Attachment—Affidavits—Sufficiency—Averment of Facts.
    Affidavits for attachment, on the ground that defendants disposed of their property with intent to defraud creditors, stated that defendants were engaged in manufacturing cloaks; that they obtained credit by representing that they were amply responsible, had a large surplus, and could soon pay their debts; that it was no part of defendants’ business to sell cloth, but that they sold large quantities at less than-cost prices; that they had very recently received a large payment of money therefor, and, ds affiants believed, had appropriated it to their own use, with intent to-prevent it from being applied to their debts. Held, that the affidavits were fatally defective as stating conclusions and inferences based on surmise, without alleging-facts to justify them.
    Appeal from special term, New York county.
    Henry R. Kibbe and others obtained an attachment against Rosalie Herman and another on the ground of fraudulent disposition of defendants’ property. From an order refusing to vacate the attachment Henry S. Manning, defendants’ receiver, appeals.
    Argued before Van Brunt, P. J., and Brady and Maoomber, JJ.
    
      II. A. Root, for appellant. Blumenstiel & Hirsch, for respondents.
   Brady, J.

The attachment in this case was issued on the ground that the-defendants had fraudulently disposed of their property with intent to defraud their creditors. The motion to vacate it was made upon the papers upon which it was granted. Three affidavits were presented for the consideration of the court,—one of them made by Edward J. Chaffee, another by Lionel R. Geisenberger, and the other by John J. Morris. Mr. Chaffee, one of the plaintiffs, states that prior to the 2d May, 1887, the defendants were engaged in the business of manufacturing cloaks, etc., in this city; that the defendant Rosalie Herman was represented by her husband, Isadore Herman, who conducted the transactions on her behalf with the firm; that on the 20th of April, 1887, Isadore called on him, and, stating that he was a little short, of funds, requested that a check dated ahead be accepted for the amount of the bill then due; that Isadore then stated that the defendants were amply responsible, doing a good business, and that it was a simple matter of accommodation to have the payment of the bill in question postponed for a day or two, as they had more pressing obligations to meet; and this representation ■so made seems to have been the keynote oí the application for the attachment. He further stated that they consented and accepted the check dated ahead; ■that subsequently, and on or about the ‘25th of April, another bill of goods matured, and Isadore again called, and, stating that the defendants had more than enough assets to pay all their debts, and a large surplus besides, and that by the 1st of May they wrnuld be in ample funds to meet their obligations, requested that one check should be given for the amount of both bills, and the request was granted. Isadore further requested that the check dated April ■30th should be deposited in the plaintiffs’ bank on the afternoon of that day, then stating it would be positively paid on the following Monday. It also appears that the check was duly presented, and not paid, and that on the 2d of May the sheriff of this county took possession of the defendants’ store under •executions issued upon four several judgments. It is further stated that the business of the defendants was that of manufacturing cloaks, and the mode of doing it was to buy the cloth, etc., and manufacture the same, and that it was no part of their business to sell cloth purchased by them, except as manufactured goods. The affiant then charges that the defendants, as he verily believes, to fraudulently dispose of their property, within the then past month ■sold large quantities of merchandise to the firm of Charles Bosenberg & Co. at less than cost prices; and that they had an arrangement with the firm of Vietor & Achelis, a commission house doing business in this ,city, by which they consigned merchandise manufactured by them to that, firm, for sale, and receiyed advances on account thereof; that as late as Saturday, April 30th, on which day the defendants offered to allow judgment to be taken against them in favor of Flora Daniels, the defendants received a large payment of money on account of merchandise so consigned to the firm of Vietor & Achelis, the amount of which he is unable to give. He then avers that the money thus received has not been applied by the defendants to the payment •of their just debts, as far as he can ascertain, and that he verily believes that the same has been appropriated by them to their own use, with intent thereby to prevent the same from being applied to the payment of their bona fide •debts. He then charges that, in view of the statements made, the defendants had ample assets with which to meet all their debts, and a surplus besides, ■and from the fact that within a week after making such statements they procured judgments to be taken against them, and having no funds on hand to meet the check given to the plaintiffs, and not having suffered any extraordinary loss in the mean time by fire, robbery, etc., they had removed and disposed of their property with intent to defraud their creditors. The substantial part of this affidavit would be very profitable, doubtless, in an application for an order of arrest; but it does not contain evidence establishing the fraudulent disposition of property, which is essential to the maintenance of •an attachment. There are charges and conclusions, but they are argumentative or inferential, resting upon surmise, and not upon facts justifying them, •and are therefore wholly insufficient. The affidavit of G-eisenberger has no greater strength in the respect named. For example, he says a sum of money was received from Vietor & Achelis, the exact amount of which he is unable to give, and that, as far as he could ascertain, was not applied by the defend•ants to the payment of their just debts, and he believes the same was appropriated to their own use, with the intention of preventing the payment of their bona fide debts. It may be here remarked in passing that the absence ■of assets to meet maturing demands, the presence of which was expected on •account of the statements made in reference to their existence, may result from the falsity of the statement that such assets were in the possession of •the defendants. Thése representations, as before said, seem to have been the ■controlling feature of the application affecting the mind unfavorably, and .more readily leading to the conclusion that property was really possessed by them and fraudulently appropriated. The affidavit of Morris contains an account of conduct on the part of Isadora Herman,-in reference to the debt-due to his firm, kindred to that given by Mr. Chaffee, in which he distinctly" states that he relied upon the representations of Isadora, and accepted from the defendants a check dated May 2, 1887, which was presented and dishonored. He repeats the charge as to the business of the defendants, and that it was no part of it to sell cloth and materials purchased by them in the market; and then avers as his belief that the defendants fraudulently disposed of their property, and sold large quantities of merchandise to Rosenberg & Co. at less-than cost price. He also alleges, in view of the statements made by Isadore,. that the defendants had ample assets with which to meet their debts, and a. surplus besides. So that his affidavit can only be regarded as cumulative evidence of the statements made in the affidavit of Chaffee, and add nothing to-its force. It will be observed that these charges are predicate of thetruthfulness of the statements made by Isidore Herman,—a criticism to be indulged, upon the kindred charges made in the affidavit of Chaffee.

We have held in the case of Fleitmann v. Sickle, and Cœsar v. Same, 13 N. Y. St. Rep. 399, that in applications of this character, where charges of fraudulent representation and fraudulent appropriation of property are mingled, the attachment will not be upheld unless over and above the charge of fraudulent representations it appears that the ground upon which the attachment was .granted, namely, the fraudulent appropriation of property to-defeat creditors, is sustained by satisfactory evidence. In these cases the-starting, if not the controlling, point was the misrepresentation of the defendant as to his indebtedness, which he underestimated; and that incident had a. guiding influence upon the court granting the attachment, as the fraudulent representations herein asserted seem to have had upon the court below. The-present case, and the cases cited, however,-are kindred only in this: they both show satisfactorily that misrepresentations were made, and that there was a failure of proof of the fraudulent appropriation of property, indeed, a failure-of proof that the defendants had it as represented. The learned counsel for-the respondents have referred to a class of cases in which it has been held,, perhaps, that evidence of a sudden and unexplained disappearance of property,, particularly when accompanied with specific allegations of removal and disposition of it, puts the defendant to his answer and establishes a prima, faciecase for an attachment. Assuming that these cases establish the proposition-contended for, they have no application here, for the reason that they are predicate of the possession of the property asserted to have been owned by the-debtor, and of which there was evidence. The proof submitted [n this case-does not establish a similar-state of facts. It does not appear except by their representations that the debtors had property to the amount asserted by thern. The difference between representations as to property and the actual ownership thereof must, in cases of this character, be kept constantly in mind in-considering the charge of the fraudulent disposition of property. If it satisfactorily appeared that the defendants’ representations as to property possessed by them were true, a sudden and unexplained appropriation of it, apparently wrongful, and also satisfactorily shown, would have its relative-merit on the charge of improper disposition of it; but both factors must be-established by evidence if they are to be employed jointly to procure an attachment. Fraud is not to be presumed; it must be proved. The presumption would be in favor of the honest use of the property, unless overborne by the facts and circumstances disclosed. The vicissitudes of business often invoke insolvency in a day, and honest merchants become bankrupt in the same-time by the occurrence of one of the various and destructive disclosures which* mark the period as one of danger in the credit realm. The order appealed from must be reversed, and the motion granted, with $10 costs and disbursements. All concur.  