Opinion
Argued September 16, 1879
Decided September 23, 1879
A.G. Rice, for appellant. George B. Bradley, for respondent.
The plaintiff cannot successfully question the right of Mrs. Alberger to test the validity of the attachment. From her affidavit served with notice of motion in December, 1877, it appeared that she was a judgment and execution creditor of Samuel F. Alberger by virtue of a judgment in her favor docketed in Erie county December 3, 1877, in Niagara county December fourth, and an execution that day issued for its enforcement to the sheriff of that county. She sought to vacate the attachment because as stated in the notice of motion, it was issued without proof of any fact or circumstance tending to establish a ground or reason therefor. The plaintiff opposed her motion at Special Term upon new and additional affidavits and it was denied. She appealed to the General Term and the order was affirmed, afterwards to this court, where the orders of the Special and General Terms were reversed and the case remitted to the Special Term to pass upon the question of the sufficiency of the affidavits on which the attachment was granted ( 75 N.Y., 179). Upon the hearing then had at Special Term the motion was again denied upon the ground that Mrs. Alberger did not acquire a lien upon the property attached so as to entitle her to make the motion, and the General Term affirmed the order upon the ground "that the affidavits on which the attachment issued were sufficient." It would thus seem that the point passed upon by the Special Term was either not raised in the General Term or else decided in favor of the respondent. But if the plaintiff is at liberty to attack the legal character of its adversary, I think it sufficiently appears from all the papers before us that she by her execution acquired a lien upon the personal property of Samuel F. Alberger in Niagara county after it was attached, and is thus entitled to get rid of the attachment if she can. That the execution was issued to the sheriff as alleged by her is not denied, and its regularity cannot be tested upon this motion. It is good until set aside — nor is it denied that on the third of December her attorney carried to the clerk's office of Erie county and delivered to the clerk a sufficient statement in writing to warrant the entry of judgment by confession in her favor against Samuel F. Alberger. It was then "filed with" him, and the clerk says he considered it, and the judgment roll, so filed, when he made the transcript which was delivered by him on that occasion to Mrs. Alberger's attorney, and which was the next day filed in the office of the clerk of Niagara county. The clerk did not in fact enter judgment, but that was his fault — and not that of the plaintiff in the judgment or her attorney — and upon a proper application it is possible the court would direct it to be done nunc pro tunc, and thus according to their custom relieve the parties against the error or mistake of the clerk. ( Mitchell v. Van Buren, 27 N.Y., 300.) In the meantime the lien acquired by the docket of the judgment in Niagara county as well as that of the execution is good as between the parties until set aside and sufficient until then to confer upon the appellant the rights of a lienor. We are thus brought to consider the sufficiency of the affidavits on which the attachment was granted. The appellant's counsel contends that they do not show any fact tending to establish that Samuel F. Alberger "is about to assign, dispose of, or secrete his property with intent to defraud his creditors" — these being the grounds on which the warrant issued. We think the learned counsel is right and because of the entire insufficiency of the affidavits entertain this appeal. ( Allen v. Meyer, 73 N.Y., 1.) They show no essential fact, and consequently none from which an inference can be drawn. If it were otherwise — if it was conceded that the matters now stated on information would be sufficient if properly verified, it would not aid the plaintiff, for they are given on information only and are unavailing because it is not shown that the persons from whom the affiants profess to have obtained the information are absent or that their depositions cannot be procured. ( Yates v. North, 44 N.Y., 271.)
The attachment is in effect an execution and a creditor's bill, and there are doubtless many cases, and this may be one, where it would be well to have both before judgment, but until the Legislature shall interfere even the diligent creditor must conform his proceedings to the regulations of the statute. It would be intolerable if the property of a citizen was liable to seizure upon such vague and inconclusive averments as are contained in the affidavits before us. If we could gather from them any fact however light which tended to show the existence of the statutory conditions, the judge would have acquired jurisdiction and it would be our duty to affirm the order, but none has been pointed out to us, nor are we able to discover any.
The order of the Special and General Terms should therefore be reversed, and the warrant of attachment, so far as it affects the property of Samuel F. Alberger individually, vacated, with costs.
All concur.
Ordered accordingly.