#### In the Matter of the Application of William Vanamee, Rec’r.

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

*Filed February 10, 1890.)*

1. Aebest—Notice to attobhey-gehebal—Laws 1883, chap. 378.

An application by a receiver of a dissolved corporation for a warrant of arrest against a person for concealment or embezzlement of property of the corporation is within the provisions of chap. 378, Laws 1883, and notice thereof must be served on the attorney-general.

2. Same—Affidavit.

The affidavit for such warrant must show the regularity of the receiver’s appointment and furnish competent proof that there is good reason to believe that the person proceeded against has concealed or embezzled property of the corporation. Information and belief based upon affidavits and writings of the person whose arrest is sought and an inspectioh of the inventory of the company is not competent proof.

Appeal by the receiver of the Warwick Machine Co. from an order denying his application for a warrant against William T. Baird.

*199The appellant was appointed receiver of the company in an action for the sequestration of its property, and duly qualified.

The application was made upon a verified petition, and upon notice to Mr. Baird.

The application was opposed on the grounds that the petition did not state facts to give the court jurisdiction; because notice of the application was not given to the attorney-general, and because the statute under which the warrant was to be issued was unconstitutional.

The court below denied the application because notice had not been given to the attorney-general.

Agar, *Ely & Fulton,*for app’lt; *Willard H.*Baylis, for resp’t.

Barnard, P. J.

Motice to the attorney-general was necessary under chap. 378, Laws of 1883. The act is very broad in its language. The attorney-general is to be treated as an attorney who appeared in the action, and even in *ex parte*applications. The act embraces an action pending for dissolution of corporations and for distribution of assets, and all proceedings in such actions. This is such an action.

The petition itself is insufficient. Mo facts are stated as a basis: for the arrest of Baird. Assuming the regularity of the appointment of the receiver, and that he has the power of trustee of insolvent debtors under the Revised Statutes, the affidavit must, show that:

> “ There is good reason to believe that the debtor, his wife or any other person has concealed or embezzled any part of the estate of such debtor vested in said trustees; or that any person can testify concerning the concealment or embezzlement thereof, or that any person who shall not have rendered an account as above required is indebted to such debtor, or has property in his custody or possession belonging to such debtor.”

The petition states that one Baird, who has not rendered an account, is indebted to the receiver and has property in his custody or possession belonging to the insolvent corporation. That there is good reason to believe that Baird has a track and ladder belonging to the same company, and that the said Baird owes the company, and that certain other property has been concealed which Baird can testify about, and that the sources of the receiver’s information are certain affidavits made by Baird, and an examination of certain other writings signed by him, and an inspection of the inventory of the company.

The sufficiency of affidavits to justify an arrest under the non-imprisonment act was a subject much discussed while that act was in force. The charge was to be established by satisfactory evidence. *Vredenburgh*v. *Hendricks,*17 Barb., 179. Information and belief are not proof. *Broadhead*v. *McConnell,*3 Barb., 175; *Blason*v. *Bruno,*33 id., 320.

The wording of the non-imprisonment act is not materially different from this act in respect to trustees for insolvent debtors. One requires sufficient evidence to justify an arrest This trustee *200is required to furnish “ competent proof ” that there is good reason to believe.

The court, on these papers, cannot find such competent proof, either that Baird has property, owes a debt or can testify concerning an embezzlement, or that he has any property in his possession belonging to the debtor.

Order affirmed, with costs and disbursements.

Pratt and Dykman, JJ., concur.