#### Edward S. Riley, App’lt, *v.*Thomas H. Skidmore *et al.,*Resp’ts.

*(Supreme Court, General Term, Second Department,*

*Filed June 28, 1889.)*

1. Attachment—Sufficiency of affidavit.

An affidavit for attachment made by a plaintiff, before a justice of the peace, which states, that he is entitled to recover a certain sum for goods sold and delivered to the defendant at his request; that “ the plaintiffs are entitled to recover,” a specified sum, “ over and above all counterclaims known to deponent; that the defendant has assigned, disposed of or secreted, or is about to assign, dispose of or secrete property, with intent to defraud his creditors, and especially these plaintiffs,” is sufficient to call for an exercise of judicial discretion, as to the issuance of the attachment.

2. Undertaking—When may be amended by justice of the peace.

A justice of the peace has power to permit an amended undertaking to be filed *nunc pro tune.*

Appeal from a judgment entered upon an order granting a non-suit and dismissing the plaintiff’s complaint.

On the 18th of June, 1887, the defendants applied to-one Nehemiah Fowler, a justice of the peace, of the city of Newburgh, for an attachment against the plaintiff. The same was regularly and lawfully granted upon a proper affidavit and undertaking, and delivered to one William Reid, then a constable of said city. Said constable lawfully attached certain property of the plaintiff thereunder, the inventory thereof amounting to $104.75.

Thereafter one Jacob Foster, claimed to own part of the said attached property valued at thirty dollars, and the constable surrendered same to said Foster.

On or about the 27th of June, 1887, the defendants lawfully obtained a judgment against the plaintiff herein, upon the trial of the action above-mentioned, for $107.52, and an execution was issued lawfully thereon to said constable Reid; who after due and lawful advertisement, sold said attached property, valued at $74.75, under said execution, realizing therefor the sum of $32.75.

Upon the trial in justice’s court the defendant appeared by attorney and simply made objection; the undertaking was amended, and an effort was made to set aside attachment, on the ground of insufficient allegations in the affidavit and undertaking. No affidavits were produced showing

*725the statements to be false, or justifying the validity of the bill of sale; and no appeal was taken from the decision of the justice of the peace.

The following is the affidavit upon which the attachment was issued.

ORANGE *COUNTY,}*

City op Newburgh, j '

Thomas H. Skidmore, being duly sworn, says he is one of the plaintiffs herein, that the plaintiffs have applied to the said justice for a summons herein, and hereby apply to said justice, to grant at the time the summons is issued, a warrant of attachment against the property of the defendant.

That this action is brought to recover for the following cause:

That between the 1st of January, 1887, and the 11th of April, 1887, the plaintiffs sold and delivered to the defendant, at his order and request, certain goods, wares and merchandise, consisting mainly of flour, at and for prices agreed upon, amounting in all to the sum of $106.27, no part of which has ever been paid, except the sum of $3.75; and that there is now due and owing from defendant to plaintiff for the same, the sum of $102.52, with interest from the 11th of April, 1887.

That a sufficient cause of action exists, in favor of the plaintiffs against the defendant, to recover damages for the cause of action above specified, as above stated.

That the plaintiffs are entitled to recover herein, therefor and thereon, the sum of $102.52, over and above all counterclaims known to deponent. That the defendant has assigned, disposed of, or secreted, or is about to assign, dispose of, or secrete property, with intent to defraud his creditors, and especially these plaintiffs.

That the defendant claims to have made a bill of sale, of all his personal effects, to one John J. Riley; but the same is not on file in the town clerk’s office, where said defendant resides and does business. And that the defendant is in possession of his store, and has been ever since the alleged time of making the alleged bill of sale.

THOMAS H. SKIDMORE.

Sworn to before me; this 18th) day of June, 1887. j

Grant A. Taylor,

*Notary Public, Orange Co.*

*John Miller,*for app’lt; *G. P. Taylor,*for resp’ts.

Pratt, J.

The affidavit made before the justice stated facts sufficient to call for an exercise of his judicial discretion. That gave him jurisdiction to issue the attachment.

There is no evidence of any abuse of the process; the property attached was not enough to satisfy the execution.

*726The permission accorded to the plaintiffs by the justice of the peace to file an amended undertaking *nunc pro*tune, was within his power, and was in furtherance of justice. Judgment affirmed, with costs.

Dykman, J., concurs; Barnard, P. J., not sitting.