
    BRODSKY a. IHMS.
    
      New York Common Pleas; General Term,
    
    
      July, 1863.
    Order of Arrest.—Removal of Debtor’s Property.—Conflicting Affidavits.—Weight of Evidence.—Appeal.
    In a case of conflicting affidavits, on a motion to vacate an order of arrest granted on the ground of a fraudulent removal of defendant’s property, the fact that the defendant did not dispute the claim in suit, and that, though of abundant ability to pay it, he was about to remove from the State without doing so,—■ Edd, proof of a fraudulent intent on his. part, which rendered his affidavit less worthy of credit than that of the plaintiff.
    The principle that the finding of fact of an inferior tribunal is not to be reversed by the appellate court, merely as against the weight of evidence, has no application to appeals to the general term from orders made, in the progress of the action, upon affidavits. (Per Dam, F. J., dissenting as to the result.)
    Appeal from an order denying a motion to vacate an -order of arrest.
    This action was brought by John Brodsky against Anton Ihms. The nature of the action, and facts which appeared upon the motion, are fully stated in the opinion of the court.
    
      John J. Freedman, for the appellant.
    I. The order of arrest in this action was granted under subdivision 5 of section 179. This subdivision makes no provision for the arrest of a defendant who is about to leave the State himself, with intent to defraud his creditors. In such case, the remedy is by attachment, under section 229 of the Code, or under the statute relating to absconding debtors.
    H. The action being on contract, the burden of proving the facts constituting the cause of arrest, which are extrinsic and wholly unconnected with the facts constituting the plaintiff’s cause of action, is upon the plaintiff. If he does not make out a satisfactory cause, the defendant should be discharged. (Republic of Mexico a. Arrangois, 11 Sow. Pr., 10; Hernandez a. 
      Carnobeli, 10 Ib., 449; and 4 Duer, 644; Barron a. Sandford, 6 Abbotts' Pr., 320, note)
    
    III. All facts constituting the cause of arrest, being positively denied, and upon the whole evidence remaining in doubt, the defendant is entitled to his discharge. (Republic of Mexico a. Arrangois, 5 Duer, 634, 641.)
    IV. Even if this was an action for damages under subdivision 1 of section 179, the evidence- would show the defendant to be still a resident of Mew York, because, 1, the defendant has not finally decided to stay in Alexandria (Burrows a. Miller, 4 How. Pr., 349); 2, he swears that he still considers himself a resident of Mew York, and, after the war, intends to reside in Mew1 York again exclusively; and because residence depends upon the intention of a party. (Vischer a. Vischer, 12 Barb., 640; De Bonneval a. De Bonneval, 1 Curteis, 856.) Meither the fact of residence without the intention of remaining, nor the intention to reside without the fact, will suffice to give a residence. (Chaine a. Wilson, 8 Abbotts’ Pr., 106; 1 Bosw., 685. See, also, 17 Jur., 511; affirmed in 9 Moore P. C. C., 335; 7 Clark & Fin., 877; 3 Curteis, 448; 1 Ib., 856.) 3. The burden of proof is upon.the party who desires to show a change of residence or domicil (Maxwell a. McClure, 24 Jur., 409; Chaine a. Wilson, 8 Abbotts’ Pr., 106); and the plaintiff has failed to show that the defendant acquired another residence both in fact and intention. (Chaine a. Wilson, 8 Abbotts’ Pr., 106; 1 Bosw., 685; Burrows a. Miller, 4 How. Pr., 349. See, also, 7 Clark & Fin., 877; 3 Curteis, 488; 1 Ib., 856; 5 Ves., 787; 24 Jur., 409.)
    V. There is no evidence whatever that the defendant has removed or disposed of his property, or is about to do so, with intent to defraud his creditors. Constructive fraud, not involving moral guilt, cannot be made a basis for arrest. (Birchell a. Strauss, 8 Abbotts' Pr., 57; and 28 Barb., 293; Spies a. Joel, 1 Duer, 669; Claflin a. Frank, 8 Abbotts’ Pr., 412.) The intent is the main point to be considered ; and a removal or disposal of property in a mode which the law declares fraudulent, may, nevertheless, be innocent in fact, and when that is shown the defendant cannot be held under arrest. . (Krauth a. Vial, 10 Abbotts’ Pr., 139; Birchell a. Strauss, 8 Ib., 57; Spies a. Joel, 1 Duer, 669; Claflin a. Frank, 8 Abbotts’ Pr., 412; Isaacs a. 
      Gorham, 1 Hilt., 481.) The allegation that the defendant has 2’emoved or disposed of his property, with intent to defraud his creditors, is not enough. Facts must be stated from which this conclusion may be drawn. (Frost a. Williard, 9 Barb., 440; Pindar a. Black, 4 How. Pr., 95.) Secrecy is an essential element of a fraudulent removal or disposition of property. (Anonymous, 2 Code R., 51; Krauth a. Vial, 10 Abbotts’ Pr., 139.)
    YI. The ability of the defendant to pay the debt in future is no ground of arrest, and furnishes no evidence of fraud. He is not bound to pay the debt until established by judgment. (Vredenburgh a. Hendricks, 17 Barb., 179.)
    
      David Hetz, for the respondent.
    I. Appeals from orders, denying motions to vacate ordei-s of ar*rest after the party is out on bail, are not to be encouraged. In case of such an appeal, the order should be affirmed, unless the appellant can affirmatively show that facts necessary to sustain the order were not established. (Moers a. Martens, 8 Abbotts’ Pr., 257; Moers a. Morro, 17 How. Pr., 280.)
    II. Where it is charged that the defendant is about to dispose of his prope2'ty, with intent to defraud his creditor’s, the judge must have evidence tending to convict the defendant of sucli charge before granting the order. The weight of such evidence is in the discretion of the judge, and his decision is conclusive. (Courter a. McNamara, 9 How. Pr., 255.)
    HI. Defendant, in his affidavit, admits the plaintiff’s claim, admits the disposition and removal of his property out of the State, and says that he has got over four thousand dollars’ worth of property, and is able to pay his debts. Why don’t he pay ?
    IY. Defendant’s denials of the facts alleged in plaintiff’s affidavits, on which the order of arrest was granted, are no positive or direct denials of the allegation of plaintiff, and are no denials at all, but negative pregnants, and cannot be taken in as pr-oper evidence on the motion. He only says, “ He says that he denies,” and he don’t deny at all. (Arthur a. Brooks, 14 Barb., 535; Blake a. Eldred, 18 How. Pr., 240.)
   Hilton, J.

The plaintiff claims to recover in this action about $90, due from the defendant, mostly from October1, 1860, for cooperage work, and materials furnished. On an affidavit, showing that defendant was about removing his property from this State to Alexandria, Virginia, with intent to defraud his creditors, an order of arrest was granted, which the defendant, on motion, sought to have vacated. It then appeared, however, that in addition to the conceded fact that the defendant had closed up his business in the city and opened a store in Alexandria, that he had a stock of goods on hand amounting to $4,000, and only owed about $1,200, of which $900 had yet to mature; also, that his wife had taken up her abode in Alexandria for the purpose of attending to the business there during his absence. To these statements, he added a denial of all the allegations in the affidavit on which the order of arrest was granted, but did not dispute his indebtedness on the claim in suit, but averred his intention to pay it.

The case, then, upon the affidavit, presented itself thus: a creditor, to whom a small claim for labor and materials had long been due, made oath sufficient to justify the granting of an order for the arrest of his debtor, upon the ground that he was about removing his property from this State, with intent to defraud his creditors. On the motion to vacate this order, a denial under oath was made by the debtor of all the allegations upon which the order was granted; but a material fact then appeared, which exhibited the character of the party making the denial, and was entitled to be considered by the judge hearing the motion as a circumstance sufficient in itself to warrant a disbelief of the affidavit of the debtor, so far as it conflicted with the positively sworn statements of the creditor. That fact was that the debtor, with $4,000 of personal property in his possession, was departing from this State, refusing to pay an honest debt of less than $100, and unwilling to apply any portion of this large amount of property to the liquidation of so small a demand.

I think a debtor evincing such a disposition is not entitled to any particular consideration at the hands of a court of justice, much less should his averments be regarded as of equal weight with that of a pursuing creditor, the honesty of whose claim stands undisputed.

The order should be affirmed.

Beady, J., concurred.

Daly, F. J.

As the action was upon contract, the defendant could be arrested only for fraud in contracting the debt, or upon the ground that he had removed or disposed of his property, or was about to do so, with intent to defraud his creditors. There is no evidence of any fraud in contracting the debt; but what is relied upon as maintaining his arrest is a statement on his part that he meant to continue his business in Alexandria, Va., until the close of the war, when he intended to go with his family to Germany, to remain there, and not to return to the city of New York. That he sold his entire stock of goods and all his property in this city, and received the proceeds; that it was his intention to go in a few days after to Alexandria, and that he told the plaintiff that he intended to buy more goods in the city, and not to pay for them.

The defendant denies every thing in the plaintiff’s affidavit, except the fact that he meant to go to Alexandria, where he has a place of business, and the fact that he sold a lot of wines and vinegar at auction in the city, from which sale he realized about $500, the whole of which he applied in payment of these debts which he specifies. Two of the creditors named make affidavits of the payment made to them, and the other creditor’s affidavit, the defendant testifies, could not be obtained in consequence of his absence. The defendant further testifies that he is not, as alleged in the plaintiff’s affidavit, greatly embarrassed in his pecuniary circumstances; that his debts amount to the sum of $1,150, $250 of which was due, and $900 of which was to become due' in four months from the time of making his affidavit, and that his stock of goods was worth over $4,000.

Upon this state of facts I do not see how the order of arrest can be sustained. Where the arrest is founded upon extrinsic facts, wholly unconnected with the cause of action, the defendant’s denial of the facts is as good as the plaintiff’s assertion of them. (Republic of Mexico a. Arrangois, 5 Duer, 634, 641, 642; Geller a. Seixas, 4 Abbotts' Pr., 103.) What is positively alleged in the plaintiff’s affidavit is as positively denied in the affidavit of the defendant; and, there being no other evidence, the statement of the one is no weightier than that of the other. Where such is the case, there is no discretion to be exercised. If the plaintiff can furnish nothing in addition to his own statement, his affidavit is no stronger than that of the defendant. The one neutralizes the other, and the defendant must be discharged.

In Courier a. McHamara (9 How. Pr., 258), Justice Harris declared that where a judge makes an order for the arrest of a defendant, it is for him to judge of the weight and conclusiveness of the evidence; that his decision, like that of a jury, upon the weight of evidence, is conclusive; and that no oilier judge, though he differ from him, has the legal right to pronounce the order void. I doubt if the rule as to the conclusiveness of the finding of a jury upon conflicting evidence has any application to a motion, where the evidence is not, as in the case of a jury, given orally, but is presented in the form of an affidavit. An appellate tribunal, in my judgment, is just as competent to pass upon a question presented upon affidavits as the judge who first heard the motion. All that he had before him they had before them, and are, therefore, as fully possessed of the case as he could have been. But where a cause is tried in court upon oral testimony it is very different. The witnesses are examined and cross-examined in the view and hearing of the jury, who are, consequently, better able to pass upon the question of their credibility, where the evidence is conflicting, than an appellate tribunal could possibly be. This reason, however, does not apply where the question arises upon affidavits, which one judge may pass upon as intelligibly as another. In the present case, no such question as the weight of evidence is presented. The evidence is exactly balanced. The intrinsic character of conflicting affidavits, when taken together, might, in certain cases, be such as to entitle one to outweigh the other in the scale of presumptive probability, but not in this case, as one party particularly denies-every material fact which the other party states. For these reasons, I think the order appealed from should be reversed.

Order affirmed.  