
    SUPREME COURT.
    James W. Whitney et al., appellants, agt. Emil Hirsch et al., respondents.
    
      Attachment — When may be issued — Code of Civil Procedure, sections 635, 3343.
    In an action to recover the purchase price of goods sold and delivered, an attachment may issue and will be sustained, notwithstanding that it is alleged in the complaint, and also stated in the affidavits, that fraudulent representations were made concerning the financial condition of the business by which the plaintiffs were induced to sell and deliver the goods.
    The case of Witinen agt. Von Minden, 37 Sun, 334, commented on and explained.
    Copies of affidavits made and filed in another action against the same defendants, brought by another plaintiff, may be used to sustain an attachment, where an inability to obtain affidavits in the action from persons • whose affidavits were made in the other suit is shown.
    
      First Department, General Term,
    
    
      January, 1886
    Appeal from an order vacating an -attachment.
    
      
      Charles H. Smith, for appellants.
    
      JBlumenstiel & Hirsch, for respondents,
    cite Rowe agt. Patterson (15 Week. Pig., 182), Easton agt. Cassidy (21 Hun, 459-461).
   Daniels, J.

According to an affidavit of one of the plaintiffs, on which, with others, the attachment was issued, and the amended complaint in the action, the plaintiffs sold and delivered to the firm of Emil Hirsch, alleged to be composed of the defendants, goods and merchandise amounting in value to the sum of $1,080.25, and it is for the recovery of that amount that judgment was demanded in the action. But it has been insisted that an attachment could not issue in-the action brought for the recovery of this indebtedness, for the reason that it is alleged in the complaint, and also stated in the affidavits, that fraudulent representations were made concerning the financial condition of the business, by which the plaintiffs were induced to sell and deliver the goods.

This, however, under section 635 of the Code of Civil Procedure, did not deprive the plaintiffs of the right to an attachment, upon complying with what has been further required to be shown by the next succeeding section. Eor a warrant of attachment has been allowed to be issued in an action, first, for the breach of a contract, express or implied, other than a contract to marry, and such a breach of contract has been alleged in the complaint, and sustained by the affidavits upon which the attachment has been issued; for it has been made to appear that the goods were sold and delivered at the request of the defendants, and that the price to be paid for them was agreed upon, and the debt has become due, and that price has not been •paid. These facts present the case of a contract made to pay the purchase price of the goods, and the omissions on the part of the defendants to perform their contract, and entitled the plaintiffs to an attachment, under this subdivision of the section, by complying with the additional requirements contained in the next section. And the action for the recovery of the debt was not deprived of its character, as an action upon contract, by-reason of the further fact that the debt had been fraudulently contracted, and the defendants, upon the recovery of a judgment, could be arrested and imprisoned upon execution. But, if it were otherwise, the plaintiffs would not be deprived by the false representations of the right to an attachment; for, by subdivision 8 of the same section, an .attachment .may also issue-for any other injury to personal property than that provided for-in subdivision 2, in which it may also lawfully issue, or for the consequence of negligence, fraud or other wrongful act; and so far as this action may be dependent upon the allegations of' fraudulent representations, inducing the sale of goods, it is within this subdivision of the section. For it may also be held to be an action for fraud, as that term has been used in this subdidivision, or, if not, then for an injury to personal property which has been defined by subdivision 10 of section 8843 of the Code, to include “ any actionable act whereby the estate of another is-lessened, other than a personal injury, or the breach of a contract.”

The fraudulent representations made were certainly not a personal injury, nor the breach of a contract, but they did constitute an actionable act whereby the estate of the plaintiffs was diminished or lessened, so far as they were induced to part with their-goods in reliance upon the truth of the representations.

And under this definition of an injury to personal property, an attachment might be issued in an action based upon it under-' subdivision 3 of section 635 of the Code.

This subject was considered in Bogart agt. Dart (25 Hun, 395), where it was held, by this general term, that an attachment might be issued to recover for advances made upon the faith of forged bills, notes and acceptances, and it was followed in Weiller agt. Schreiber (63 How., 491).

It has been supposed that Wiltner agt. Von Minden (27 Hun, 234), by its language, restricted this section of the Code, so far-as to exclude an action of the present description; but it did not, and, if it did, as the cases have been prescribed by the statute, in which attachments may he issued, the act itself would' "be required to be followed rather than a determination tending-to abridge its effect

As this ease has been presented, it is included within the first subdivision of section 635. But, if any doubt could exist as to the correctness of that construction, it would purely be within the provision contained in the 3d subdivision of the same section. The attachment was issued upon the further ground that the defendants had disposed of their property with intent to-fraud their creditors, and that charge was chiefly made to depend upon a general assignment executed by Emil Hirsch himself, in which he preferred the other defendant, Tillie Stem, in. the amount $8,141.31. This preference has been assailed as-unlawful for the reason that she was, in fact, a partner with the assignor in the business earned on in his name, and assigned by the assignment; and affidavits have been produced tending - very directly to establish the fact that she was a partner in the - business.

The affidavits were not all made in this action, but, in part, consisted of copies of affidavits made and filed in an action-against the same defendants, brought by Horace B. Claflin and others. These copies and extracts have been included, because-of an alleged inability to obtain affidavits in this action from persons whose affidavits were made in the Claflin suit

And it has been held in Bennett agt. Edwards (27 Hun, 352), that such extracts may be used under this state of the facts, and’ the correctness of that conclusion was in no manner doubted in Wilmerding agt. Cunningham, (65 How., 345), where only the results deemed to be supported by the affidavits were contained' in that upon which the attachment was based, and that was held not to be sufficient, and the same rule was followed in Greenbaum agt Dwyer (66 How., 266). Under the facts, as they have been disclosed therefore, the extracts from the affidavits on file may lawfully be made use of to support the plaintiffs right to the attachment The statements extracted and the affidavits copied were made under the the restraints of oaths administered. for tbe purpose, and, if they could be shown to be wilfully false, the persons making. them would be liable to conviction and punishment for the crime of perjury under the laws of the state, as much so certainly as though the affidavits containing these extracts, and those copied, were made in this action.

These extracts and copies, to a reasonable degree of certainty establish the fact that the defendant, Stern, formed a partnership with the defendant, Hirseh, in the business, aijd she probably continued to be a partner through the time when the plaintiffs goods were sold and delivered. The only qualification of her relation to the business was stated by her husband to be, that he informed Mr. Hirseh that he wanted to withdraw the money which had been invested in the business on behalf of his wife. That was objected to by Hirseh, because it would break him up to withdraw the capital, and he is stated by her husband to have added: “You remain here; I will engage you as assistant clerk in the business under a salary, arranging that the money was to remain in the business until January 1,1884, which I consented to on behalf of my wife.”

This was not considered by Hirseh to exclude her from her rights as a partner in the business, and he is so stated to have informed the plaintiffs’ attorney on the 21st of July, 1884, when, according to his affidavit, Hirseh said Tillie Stem and himself were partners, and a like statement is verified by Leo Frank, a copy of whose affidavit, in the Claflin suit, was contained in the papers upon which the attachment was issued. As the case was presented, there was certainly reasonable ground for believing that Tillie Stern continued to be a partner with Hirseh all through the times when the plaintiffs’ goods were sold and delivered, and the assignment was subsequently made November 22, 1888, and, being a partner in the business, it was fraudulent to prefer her as a creditor in the general assignment made for the benefit of creditors. Substantially the same state of facts was presented in the case of Claflin agt. Hirsch, where it was held by the general term that the attachment could legally be issued and sustained, for the reason that there had been this fraudulent disposition of the debtor’s property. The attachment issued in this action ought not to have been vacated, and the order vacating it should be reversed with the usual costs and disbursements, and an order entered denying the motion.

Brady, J.

(dissenting). — The complaint herein alleges, that the defendant fraudulently contracted the debt for which judgment is demanded,- and it is thus brought within the provisions of subdivision 4 of section 549 of the Code, and which distinctly provides that, where such an allegation is made, the plaintiff cannot recover unless the fraud is established, and, further, that a judgment for the defendant is not a bar to a new action upon the contract only. In such an action this court held distinctly, that an attachment under the provisions of the Code could not be maintained ( Wiltner agt. Von Minden, 27 Hun, 234).

The judgment under the complaint in this action in favor of the plaintiffs, would authorize the imprisonment of the defendant if it were not paid. This view renders it, perhaps,, unnecessary to consider any other question suggested upon the appeal Nothing either in the case of Muser agt. Lisner (67 How., 509), in this department, or in Ledwich agt. McKim (53 N. Y., 307), at all conflicts with the results stated.

The plaintiffs are bound in the prosecution of their remedy by the allegations in the complaint, and their success, as we have seen, is dependent upon the proof of those allegations. If not successful, they are not deprived, as we have seen also, of a new action founded upon the contract alone, by which the defendants became responsible. They would not be entitled, therefore, even if the evidence sufficiently established the fact, to an attachment in this action, upon the ground that the dedefendants had fraudulently disposed of their property with the intent- to defraud their creditors. For these reasons the orders appealed from should be affirmed

Davis, P. J.

(concurring). — My brothers, Brady and Daniels, not concurring in their views in this case, it becomes necessary that I should state the grounds on which I think the disposition of the appeal should be made.

The action is brought to recover for goods sold and delivered» It is, therefore, an action upon contract In such an action, under the provisions of section 549, subdivision 4, where, for the purpose of arresting the defendant, it is claimed that-the defendant was guilty of a fraud in contracting or incurring the liability, it is necessary that the allegations of fraud should be made in the complaint in issuable form, so that they may be tried by a jury or by the court; but this fact does not change the action from one upon contract It only affects the remedy, provisional and final, and subjects the plaintiff, if he fail to prove the alleged fraud, to bring a new action upon the contract as one not sc fraudulently contracted. As the action, notwithstanding the allegations of fraud, continues to be one upon contract, there seems, to me, no reason why the attachment may not be sustained. The case relied upon by Brady, J., is not applicable (Wiltner agt. Von Minden, 27 Hun, 234). That was a case where the action was brought to recover damages for an alleged fraud, and not to recover the purchase price of goods sold and delivered.

If the question decided in Wiltner agt. Von Minden were an open one, it might well be doubted whether the attachment, in this case, could not be upheld under the 3d subdivision of section 635 of Code, which gives an attachment in an action for any injury to personal property in consequence of negligence, fraud or other wrongful act, and under the definition of injury to property — section 3343, subdivision 10 of Code — the inducing of a sale and delivery of property by fraudulent representations, is clearly an act for which an attachment is allowable.

I concur with Daniels, J., that the order in this case should be reversed.  