
    Melvin W. Harroway, Plaintiff, v. J. Della Flint, Defendant.
    (County Court, Schoharie County,
    February, 1897.)
    1. Attachment — Affidavit.
    An affidavit for an attachment which alleges an intent to defraud merely upon information and belief, is insufficient.
    
      2. Same — Fraudulent disposition of property.
    An allegation that defendant. “ could not pay all her ,debts, and that she would -have to make an assignment, and that she proposed -to take care of certain ones of her creditors, and the others could take- up with what they could get,” is insufficient to show an intent to make.á fraudulent disposition of property, ’as the. defendant would have a. legal right to make a preferential assignment.
    Motion to vacate warrant of attachment.
    L. W. .Baxter, for motion.
    E. A, Box (Q-. M. Palmer, of counsel), opposed.
   Lamont, J .

This motion is-based upon- the alleged insufficiency of the affidavit upon which the warrant of attachment was issued, in that it does not show an intent to make a fraudulent assignment, and that the allegations in relation thereto are made upon information and belief. The affidavit as to .these matters reads as .follows: “ That the defendant J. Bella Flint is a resident of the state .of New York, and is about to assign and dispose, of her property-with intent, as this deponent believes, to defraud her creditors, and the -grounds of his belief are as follows:: That defendant’s husband, Alvin J. Flint, her agent, as hereinafter stated, informed this plaintiff, within the past week, that defendant could .not pay all her debts; that she would have to. make an assignment, and-that she proposed to take care of certain ones'of her creditors; and the others could take up with what they could get. That said Alvin J. Flint is the duly-authorizéd and constituted agent of • said defendant, doing and transacting all her business matters, as her said agent, as deponent is informed and -believes.”

I think that this affidavit is fatally defective, in that the material allegations, charging intended fraud on, the part of the defendant, are upon information and belief: The allegation of

agency rests upon mere hearsay, and I do not believe that it is sufficient to authorize a seizure of the defendant’s property. Marine National Bank v. Ward, 35 Hun, 399; Selser Brothers Co. v. Potter Produce Co., 77 id. .313; Yates v. North, 44 N. Y. 274; Steuben Co. Bank v. Alberger, 78 id. 252; Haebler v. Bernharth, 115 id. 465; Hill v. Bond, 2 How. Pr. 272; Claflin v. Baere, 57 id. 78; Wallach v. Sippilli, 65 id. 501.

Again, even if the allegations in the affidavit charging intended fraud were positive, and not upon information and belief, the affidavit is still defective. It does not show any intent on the part of the defendant to do any act to defraud her creditors. The allegation “ that defendant could not pay all her debts, and that she would have to make an assignment, and that she proposed to take care of certain ones of her creditors, and the others could take up with what they could get,” fall far short of showing an intent on her part of making a fraudulent disposition of her property. She had a legal right to make a preferential assignment, thereby taking care of certain ones of her creditors, and the fact that the others would have to take up with what they could get would in no sense make the assignment fraudulent, but would be the legal sequence of a preferential assignment. Casola v. Vasquez, 147 N. Y. 258; Andrews v. Schwartz, 55 How. 199; Evans v. Warner, 21 Hun, 574.

I would like to uphold this attachment, but the affidavit appears so clearly insufficient that I can come to no other conclusion than that the warrant must be vacated. An order to this- effect may be entered, but without costs.

Motion granted, without costs.  