#### Thompson *et al. v.*Dater *et al.*

*(Supreme Court, General Term, Third Department.*

July 7, 1890.)

1. Attachment—Grounds.

The fact that defendants’ stock has decreased from $6,000 to $3,000 during a period of eight months of unsuccessful business will not sustain an attachment on the ground that they have fraudulently disposed of their property.

8. Same.

That defendants were negotiating for the sale of their business at its value, but declined to pay plaintiffs, or to promise to pay them out of the avails of the sale, if it should be made, and also refused to make a *pro rata*general assignment, is no evidence of an intention to fraudulently dispose of their property.

8. Same—Practice—Dissolution—Appeal.

An order refusing to dissolve an attachment which shows that both parties were heard on the motion is appealable whether formal notice of the motion was given or not.

Appeal from Rensselaer county court.

Application by Charles W. Dater and another to vacate an attachment levied on their property at the suit of James Thompson and others. Application denied. Defendants appeal.

Argued before Learned, P. J„ and Landon and Mayham, JJ.

*Davenport & Hollister, (Nelson Davenport,*of counsel,) for appellants. *James Lansing*and *Frank 8. Black,*for respondents.

Learned, P. J.

This is an appeal from an order refusing to vacate on the original papers an attachment against property of defendants. The grounds recited in the attachment are that a cause of action exists on breach of contract for sale of goods and on a promissory note, and that defendants have assigned, disposed of, and secreted their property with intent, etc., and are about to assign, etc., with like intent. The action, therefore, is not for injury to property, but for breach of contract in not paying a debt. The question on the appeal is whether there was evidence justifying the holding that defendants had assigned, etc., or were about to assign, etc., with intent, etc. One of defendants, on the 14th of February, 1890, said that they were hopelessly insolvent, owing $20,000, and having assets about $10,000; that they had been insolvent for six or eight months, and had known their insolvency since October 1st previous; that defendants then owed the Manufacturers’ Bank $8,000, and the Mutual Bank $2,500; that defendants were trying to sell their property to one Patton, expecting to receive about $10,000; that they had no proposition to make as to plaintiffs’ debt. Said defendant refused to pay plaintiffs’ debt, or -secure it, or to promise to pay it from the sale to Patton, and stated that they would not apply their property to their debts *pro*rata. The affidavit avers that Knight, one of defendants, had been a partner of another firm until a short time before the commencement of this action, when he assigned all his interest therein to his wife; that defendants had tried to sell their property and business to one Cleveland, but could not, for reasons immaterial on this motion.

An affidavit of one Stickney states that he was, until June 1, 1889, in the employment of defendants; that while he was with them the average stock in manufactory and lands was about $5,000 or $6,000 worth; that he examined their stock about February 14,1890, and found less than $2,000 worth. From these statements of Stickney the plaintiffs believe there has been a great and sudden change in the amount of stock. The plaintiffs’ affidavit states that they are informed by said Stickney that this change from $5,000 to $2,000 was within two weeks prior to February 14th. Stickney’s affidavit, on the contrary, shows that it occurred between June 1st and February 14th,—eight months and a half. This shows the difference between hearsay and sworn statements. There is nothing in the least suspicious in the diminution of a stock from $6,000 to $2,000, during a period of over eight months, in a concern which is *614not successful in business. Such a circumstance, standing alone, in no way tends to sustain an allegation that the defendants have disposed of property with intent to defraud. There is no other evidence of any transfer of defendants’ property, except that it is stated that one of the defendants had sold his interest in another firm to his wife. What such interest was worth is not stated. What he-received is not stated. Whether there was any value whatever in his interest after payment of the debts of that firm is not stated. There is no evidence that that transfer was fraudulent. Therefore the allegation that defendants had assigned theirproperty with intent to defraud fails entirely.

There is no evidence that defendants were about to assign with intent to defraud. The defendants had been negotiating for a sale of their business, but had not been successful. One defendant declined to pay plaintiffs, and thus to give them a preference over other creditors. He declined to promise to pay them out of the avails, if they should sell. He declined to make a general assignment *pro rata.*In all this there was no evidence of intent to defraud. Defendants had a right, within the statutory limit, to make preferences. It was not fraudulent for one of defendants to refuse to promise to assign pro rata. The plain case is this: The defendants were badly embarrassed. They had ineffectually tried to sell out their business. They owed, largely, certain banks in Troy. They were not ready to say what steps they would take in disposing of their property among their creditors. The plaintiffs wished to get a preference, and they sought to do this by entangling defendants in their talk, by asking for promises and for payment, by sending a former employe of defendants to estimate the stock, and then by making an affidavit as to their own beliefs and suspicions. Attachments are not to be granted on beliefs and suspicions. They operate to give an advantage to one creditor over others; and some wrongful act, or the evident intent to do some wrongful act, must be shown to justify them. We must not overlook the phrase “with intent to defraud his creditors.” That is the gist of the allegation, and this intent must be shown by evidence. We see nothing in these papers which shows any such intent in regard to transfers made, or transfers about to be made. In fact the only transfer in prospect was one to Patton for $10,000, and there is not the slightest allegation that this was not a fair price, or that Patton was not responsible. If the defendant had promised to pay plaintiffs their debt of over $7,000 out of this $10,000, as they asked him, he would have been promising a preference beyond that allowed on a general assignment. Of course, it is natural that plaintiffs should wish to be paid, and that they should desire, if they can, to get a preference over other creditors; but when such preference can only be had by showing an actual or expected transfer with intent to defraud creditors, courts should be careful to see that the evidence clearly shows that such fraudulent intent really existed in the mind of the defendants, and not merely in the ingenuity of the plaintiffs.

A point is made that this Order is not appealable because it is said to be *ex parte.*This is a mistake. The order was made on defendants’ motion, and on hearing plaintiffs! counsel in opposition. It is of no consequence on this appeal whether the parties appeared voluntarily, or on a formal notice. Indeed, it does not affirmatively appear on the papers that there was not a regular notice. Nor was it necessary that this should appear on the papers. It is enough that the order shows that both parties were heard on the motion to vacate the attachment. As that was the case, the order denying the motion was not *ex parte,*and is appealable.

We have examined the affidavits carefully, though we have not set forth all the allegations at length, and we are satisfied that there was not such evidence as justified the attachment. Order reversed, with $10 costs and printing disbursements, and motion to vacate granted, with $10 costs.