
    Martin L. Rickerson, Respondent, v. LeRoy E. Bunker et al., Appellants.
    (Supreme Court, Appellate Term,
    February, 1899.)
    1. Attachment — Affidavit as to amount due over all counterclaims.
    An attachment affidavit is sufficient under section 636 of the Code of Civil Procedure where the plaintiff states that the “ defendants are justly indebted to him in the sum of 8511.31 over all set-offs or counterclaims that the said defendants might have against this plaintiff to his knowledge ”.
    
      Ü. Same — Fraudulent disposition of property — Alternative statement.
    Where affidavits sufficiently show a fraudulent disposition of property, the Appellate Term will not vacate an attachment merely because the moving affidavit contains the alternative statement that the defendants “ have assigned, disposed of * * * or are about to assign, dispose of * * * property”.
    Rickerson v. Bunker, 25 Misc. Rep. 796, affirmed.
    Appeal by defendant, Chellborg, from an order and judgment of the General Term of the Oity Court of New York, affirming an order made at Special Term denying a motion to vacate an attachment against the property of this defendant.
    
      Oscar H. Stearns, for appellant, Chellborg.
    Charles Lex Brooke, for respondent.
   MacLean, J.

The appellant contends, first, it is not shown in the language of section 636, Code of Civil Procedure, in the moving affidavit, “ that the plaintiff is entitled to recover a sum stated therein, over and above all counterclaims known to him; ” and, secondly, the allegation that the defendants “ have assigned, disposed of * * * or are about to assign, dispose of * * * property,” in the language of section 636 Code of Civil Procedure, is in the alternative and so not affirmative and not sufficient.

Respecting the plaintiff’s right of recovery, it is not necessary to adopt the words of the statute (Ruppert v. Haug, 87 N. Y. 144), advisable as that is, for it is enough to show the facts required, and that sufficiently appears from the words, “ defendants are justly indebted to him in the sum of $511.31 over all set-offs or counterclaims that the said defendants might have against this plaintiff to his knowledge.” Moreover, the expression employed and quoted above is practically the same as one heretofore regarded as sufficient. Barton v. Saalfeld, 1 How. Pr. (N. S.) 276. Outside of the alternative statement objected to, the affidavits presented sufficient evidence of fraudulent disposition of property to authorize the issue of an attachment. Whether that evidence appears or not with such cogency as to satisfy everyone, it satisfied the judge who granted the attachment and the justices of the General Term, and their action may not now be interfered with.

The order should be affirmed, with costs.

Freedman, P. J., concurs; Leventritt, J., concurs in result.

Order affirmed, with costs.  