
    James B. M. Grosvenor, Resp’t, v. Isaac Sickle, App’lt.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed January S3,1888.)
    
    Evidence—Fraudulent conveyance—Intent—Presumption.
    If an act is susceptible of an innocent construction as well as of a fraudulent one, courts are bound to place an innocent construction upon the act rather than to assume it to have been done with a fraudulent intent.
    Appeal from order of the special term denying defendant’s motion to vacate warrant of attachment.
    
      A. Blumenstiel, for app’lt; Albertus Perry, for resp’t.
   Per Curiam.

The motion was made upon the papers upon which the warrant was granted. The affidavit after setting up the grounds upon which the cause of action arose alleges that the defendant has assigned and disposed of his property with intent to defraud his creditors as the affiant is informed and verily believes, and that the grounds of such belief were, that in June, 1887, in order to induce the plaintiff to sell the defendant .goods upon credit, he made certain representations to the plaintiff, who, relying upon such statements, sold and delivered the goods, and that two days after the plaintiff’s claims' became due, the defendant assigned and transferred all his property of every name and nature without any consideration therefor.

The affiant further states that he is informed that the statements and representations made to the plaintiffs by the defendant as aforesaid were false and fraudulent. The affiant further states that the defendant had been engaged in business as a merchant in the city of New York, and that since he purchased the goods from plaintiff he had continued to purchase goods upon credit from different merchants of the city of New York, up to a few days since, and has made such purchases upon credit to a large amount and that the defendant claims that he is now indebted to a large amount, although he has not apparently met with any' pecuniary reverses since the purchase of said goods from the plaintiff as. aforesaid.

Upon this affidavit the attachment was issued and a motion was made to discharge the same which was denied.

The ground upon which the attachment was issued appears to have been that the allegation that the defendant had assigned and transferred all his goods without actual consideration, raised the presumption that such transfer was made with intent to defraud his creditors, and that there was no reason why it should be assumed that this transfer was a general assignment in trust for his creditors, and that if it was of that character the defendant should say so.

In this consideration of the affidavit in question it would appear that the learned judge lost sight of the maxim that if an act is susceptible of an innocent construction as well as of a fraudulent one, courts are bound to place an innocent construction upon the act rather than to assume it to have been done with a fraudulent intent.

Therefore when the simple allegation is that the defendant has transferred his property without actual consideration, if he could make such a transfer without committing a fraud, in the absence of any further proof we must necessarily assume that such was the nature of the transfer.

If this is not the rule then an attachment may issue in the first instance in every case in which an assignment for the benefit of creditors is made and certainly such was not the intention of the statute.

There seems to be no evidence sufficient to justify the court in finding that the defendant had or is about to dispose of or secrete his property with intent to defraud his ■creditors.

The allegations in regard to the fraudulent contraction of the debt can have no weight in the consideration of this question because they are entirely immaterial in the matters to be established in order to entitle the plaintiff to an attachment.

There being nothing, whatever, in this case to show that this' transfer was fraudulent as against the creditors of the defendant, the motion to set aside the. attachment should have been granted.

The order appealed from must be reversed and the motion granted, with ten dollars costs and disbursements.  