
    John H. Dinturff, Resp’t, v. Clarence C. Tuthill, Survivor, App’lt.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed January 22, 1892.)
    
    1. Attachment—Warranty-Recitals.
    A warrant of attachment which follows the language of the statute and recites the facts in the alternative is clearly defective. The ground of the attachment should he distinctly recited.
    3. Same—Affidavit—Transfer of property.
    An affidavit which states that the defendant has sold his property to creditors in payment of a past indebtedness or to secure endorsements; that such sale was made at less than tho market price, and was ma’de for the purpose of preferring such creditors, and to hinder, delay, etc., the other creditors, is insufficient to authorize the issuance of an attachment, in the absence of allegations attacking the bona jides of the indebtedness or to show the market price or the price at which the property was applied in payment of the debt.
    Appeal by defendant and by Mathias H. Arnot et al, who are not parties to the action, from an order of the county judge of Yates county denying an application on the part of the defendant and the third persons named, to vacate an attachment previously issued by him.
    
      F. Collin, for app’lt; J. F. Parlchurst, for resp’t.
   Dwight, P. J.

The application was founded on the papers on which the warrant was granted and an affidavit of the third per,-sons named, showing their interest in the property attached, acquired subsequently to the levy of the attachment. The first mentioned papers consisted of a verified complaint in the action, which was on a promissory note made to the plaintiff by the firm ■of Henry Tuthill & Son, of which the defendant was the sole surviving partner, and an affidavit of the plaintiff which, after setting out his cause of action, continued as follows:

“ That the said defendant Clarence C. Tuthill, as sole surviving •partner of the firm of Henry Tuthill & Son, has removed or is .about to remove the property of the said firm from the state with intent to defraud the creditors of the said firm, or has assigned ■disposed of or secreted, or is about to assign, dispose of or secrete the property of the said firm with intent to defraud the creditors •of said firm. That the sources of deponent’s knowledge are ■conversations' had with the said defendant Clarence C. Tuthill, in which the said Clarence C. Tuthill told defendant that his firm was hopelessly and irretrievably insolvent and had been for some "time past, and that they had no idea of continuing the business. 'That the property of said copartnership consisted simply of about $10,000 worth of barley and malt and a team of horses worth about $1,000, while the indebtedness of said firm was some $65,-000. That on the 27th day of December, 1890, the said defendant Clarence C. Tuthill, as aforesaid, had in contemplation the •making of an assignment of the property of said firm, but that there was some question as to his being legally able to make such .an assignment, that he had sold a certain quantity of malt and barley to one Emmett 0. Dwelle in payment and satisfaction of ¡a past due indebtedness of said firm, and that he had sold the balance of said malt and barley to one John T. Andrews, 2d, in -order to secure Augustus W. Franklin, his uncle, and a partner ■of said Andrews, for his liability by reason of endorsements for the firm of Henry Tuthill & Son. That such sale was made at less than the fair market value of said property, without the payment of any bona fide consideration, and that such sales and transfers were made for the sole and only purpose of preferring the said Emmett C. Dwelle and Augustus W. Franklin, and in-•order that the other creditors of Henry Tuthill Sc Son should be prevented from collecting their debts and demands and left remediless.”

The warrant of attachment contained, by way of recital, a statement that it appeared by the affidavit of the plaintiff that the ■defendant has removed or is about to remove property of the said firm from the state with intent to defraud the creditors of the said firm, or has assigned, disposed of or secreted, or is about to assign, dispose of or secrete the property of said firm with like intent.” The warrant contains no other recital of the ground upon which it was issued.

The warrant vflas clearly defective in the respect last mentioned. The requirement of the Code is positive that the warrant “ must briefly recite the ground of the attachment” Code of Civ. Pro., .§ 641. This warrant recites several facts in the alternative, one or another of which is said to have appeared by the affidavit, but it specifies no one or more of them as having so appeared, or as> being the ground upon which the attachment was issued. The. statement clearly does not answer the requirement of the Code, above cited. In Arnot v. Wright, 55 Hun, 561; 29 St. Rep., 425, a similar statement in an affidavit, following the language of the statute, in the disjunctive, was held to be ineffective. The court, said “ the statement in the affidavit was in the alternative, and hence alleged neither one fact nor the other;” citing Lee v. Heirberger,., 1 Code Rep., 38; Collins v. Beebe, 27 St. Rep., 4. For'this irregularity, which was particularly specified 'in their notice of motion,, we suppose the moving parties, appellants here, were entitled to have the attachment vacated. First Nat. Bank v. Bushwick Chem. Works, 25 St. Rep., 830.

But there is a far more radical and meritorious ground .for setting aside this attachment. It is found in the absence from the affidavit of facts necessary to give jurisdiction to the officer to issue the warrant. Of course the mere allegation, in the language-of the statute, of the conclusion of fact of which proof to the satisfaction of the judge is required to be made, is not of itself such proof; it is at the best mere allegation, and since in this-affidavit, it is made in the alternative, it does not amount even to an allegation of either of the facts, one or more of which is required to be shown.

Such an allegation in a complaint would be held bad on demurrer, and it has no tendency to establish either of the facts mentioned. We are remitted, therefore, in the search for proof upon which the county judge might act judicially in determining the plaintiff’s application for an attachment, to the specific statements of the affidavit, made on the strength of alleged declarations of the defendant. And in respect to these, waiving all minor questions, as, for example, whether such evidence is not, mere hearsay, and whether the declarations of an assignor of personal property are admissible to impeach the title of his assignee,, it seems very clear that this evidence, even if held competent, fails to support prima facie either of the conclusions of fact previously alleged. The only effect claimed for it in that direction is that it tends to show that the defendant, as survivor, etc., had! disposed of the greater part of the property of the firm with intent to defraud the creditors of the firm. But to give it such effect is to do violence to the plain import of the alleged declarations of the defendant. Those declarations import nothing more than that the defendant has turned out property of the firm to-pay and secure a particular debt and a particular liability, and thereby to prefer those obligations to other obligations of the firm. The bona fides of those obligations is in no wise impeached. The: statement that the sales of the property were “without the payment of any bona fide consideration ” is evidently only an other-form of the previous statement that the property was turned out in payment of a precedent debt. No rule of law is more absolute-than that, in the absence of statutory regulation of the distribution-of the estate of insolvents, the debtor may employ his property in> payment of such of his honest debts as he sees fit to prefer. The provisions of the act of 1887, chap. 503, apply only to general .assignments for the benefit of creditors, and have never been ■extended beyond the case of transfers of property so connected with a general assignment as to manifestly constitute a part of the •same scheme for the disposition of the estate of the insolvent. Manning v. Beck, 54 Hun, 102; 26 St. Rep., 483.

The statement that such sale was made at less than the fair market value of the property is a mere conclusion of fact of which no evidence is given; it is not stated what was the market value of the property, nor at what price it was applied in payment of the debts mentioned, nor whether the difference between such •value and price was substantial or merely nominal. And the •concluding allegation of this branch of the affidavit, whether it is to be regarded as a declaration of the defendant or a conclusion ■of the affiant, lends no substantiation to the charge of fraudulent intent on the part of the defendant. It is as follows: “ That such sales and transfers were made for the sole and only purpose of preferring the said Emmett C. Dwelle and Augustus W. Franklin and in order that the other creditors of Henry Tuthill & Son should be prevented from collecting their debts and demands and left remediless. ” As we have already observed, the purpose to prefer the creditors named was a lawful one, and its execution must necessarily have the effect to prevent the collection of the debts •due to other creditors, so far as property turned out to the former is concerned. . There seems to be nothing in the facts disclosed by this affidavit to impugn the honest intent or the lawful effect -of the transaction which is the subject of the narrative.

Such being the case, the learned county judge was without jurisdiction to issue the attachment and the motion to vacate the same should have been granted.

The order appealed from should be reversed and the motion granted.

So ordered, with ten dollars costs and the disbursements of the appeal and ten dollars costs of the motion.

Macomber and Lewis, JJ., concur.  