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[Or, that the defendant has assigned and disposed of or secreted9 or, that defendant is about to assign and dispose of or, secrete his property with intent to defraud his creditors.97 The sources of deponent's information and belief are the affidavit of M. N., hereto annexed [or state details here; see Forms 830-833, 943].

[Or, defendant a foreign corporation.]98

III. That the defendant Y. Z. is a foreign corporation, created by and under the laws of [here indicate State or nationality, and

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The intended removal of its plant from New York to New Jersey does not show that a corporation intends to defraud its creditors. Davis v. Reflex Camera Co., 97 App. Div. 73, 89 N. Y. Supp. 587.

As to what is sufficient evidence of concealment, see Mott v. Lawrence, 9 Abb. Pr. 196, 17 How. Pr. 559; Frank v. Levie, 5 Robt. 599; Denzer v. Mundy, 5 Robt. 636; Kipling v. Corbin, 66 How. Pr. 12.

96 It is not necessary to show an intent extending to all of the defendant's property; such a disposal of any substantial part thereof is enough, if leaving defendant insolvent. Parrott v. Mayer, 31 Misc. 50, 64 N. Y. Supp. 649; Weiller r. Schreiber, 11 Abb. N. C. 175; Hyman v. Kapp, 22 Wkly. Dig. 310.

But under the Wisconsin statute, an affidavit stating that the defendant had disposed of or assigned "his property, or any part thereof," or was about to do so, with intent to defraud his creditors, was held insufficient. Goodyear Rubber Co. v. Knapp, 61 Wis. 103, 20 N. W. Rep. 651.

A statement in the disjunctive, that the defendants "have assigned"

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or are about to assign" held immaterial where the affidavit otherwise showed a fraudulent disposition of

property.

Rickerson v. Bunker, 26 Misc. 383, 56 N. Y. Supp. 202.

97 Allegation of a disposal intended to delay and defraud plaintiffs instead of the defendant's creditors generally, held sufficient, it appearing from the affidavit that the plaintiffs were in fact creditors. Auerbach v. Hitchcock, 28 Minn. 73, 9 N. W. Rep. 79.

98 The jurisdictional facts under Code Civ. Pro., § 1780, must clearly appear, or the attachment will be vacated. Coolidge v. Am. Realty Co., 91 App. Div. 14, 86 N. Y. Supp. 318; Ladenburg v. Com. Bank, 87 Hun, 269, 33 N. Y. Supp. 821.

An affidavit was held to sufficiently show defendants to be a foreign corporation, where deponent alleged his information to have been derived from two corporation directories specified, and that the secretary of state of the foreign state had telegraphed that the defendant was a corporation of that state. Steele r. Gilmour Mfg. Co., 77 App. Div. 199, 78 N. Y. Supp. 1078. Where affiant alleged personal familiarity with the transaction upon which the action was based, held that his allegation on personal knowledge that defendant was a corporation organized under the laws of a specified state sufficiently established that fact. Box Board, etc., Co. v. Vincennes Paper Co., 45 Misc. 1, 90 N. Y. Supp. 836; contra, Am. Trading Co. v. Bedouin Steam Nav. Co., 48 Misc. 624 (agent's allegation of personal knowledge of the shipment of hemp from Manilla by a steamship owned by defendant, lends no force to the statement of personal knowledge of fact and place of defendant's incorporation).

add any jurisdictional fact necessary and not already alleged or shown by a duly verified complaint annexed and referred to, for instance: and that the plaintiff is a resident of the county of in the State of New York," or if the plaintiff is a non-resident or foreign corporation, and that the subject of the action, viz. [state what] is situated within this State, to wit, at -or, that the contract hereinbefore alleged was made or, and the said cause of action arose within this State,1 to wit at and if any additional facts are necessary to show that this legal conclusion is well founded, state them; also, if the plaintiff is a foreign corporation, and the transaction shows that plaintiff did business within the State,1a that plaintiff duly procured from the Secretary of State of the State of New York on the day of

within this State, viz., at

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19 a certificate authorizing it to do business in the State of New York, and has duly paid the license fee and procured the receipt therefor required by law.]2

[Or, in an action against a United States corporation.]

III. That the defendant is a corporation created and organized under acts of the Congress of the United States [if private acts, give title and citation], and having its principal office in and not in this State.3

It was suggested in Randolph v. Susque. Water Co., 12 App. Div. 479, 42 N. Y. Supp. 411, that since a certificate of incorporation is a matter of public record, any person dealing with the corporation may be presumed to acquaint himself with it and therefore have personal knowledge.

99 An allegation that plaintiffs are bankers doing business in the city of New York does not show that they are residents of the State. Ladenburg v. Com. Bank, supra.

1 Required under N. Y. Code Civ. Pro., § 1780; Oliver v. Heywood Chair Co., 10 N. Y. Supp. 771; Smith v. Union Milk Co., 70 Hun, 348, 24 N. Y. Supp. 79; aff'd, 143 N. Y. 622; Selser Bros. Co. v. Potter Produce Co., 77 Hun, 313, 28 N. Y. Supp. 428; People r. St. Nicholas Bank, 44 App. Div. 313, 60 N. Y. Supp. 719, 30 Civ. Pro. 30; Merchants' & Mfg. Co. v. Grand Trunk Rw. Co., 11 Abb. N. C. 184; and Adams v. Penn. Bank, 35 Hun, 393.

1a As to what is "doing business,"

within the requirements of the stat ute, see Vol. I, p. 526, and cases cited in notes.

2 Such fact has been held essential. Sawyer Lumber Co. v. Bussell, 84 Hun, 114, 41 N. Y. Supp. 1107.

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An allegation that the plaintiff, a foreign corporation, is duly authorized to transact business within this state" sufficiently shows its authority. Lumley v. Anatron Chem. Co., 56 App. Div. 174, 67 N. Y. Supp. 663.

But the authority of these cases has been impaired by the reasoning, if not directly over-ruled, by Parmlee Co. v. Haas, 171 N. Y. 579 (holding such allegations immaterial where an arrest had been obtained, dependent necessarily upon plaintiff's showing a right to sue, and that non-compliance was a matter of defense only).

3 Rosenbaum v. Union Pacific Ry. Co., 2 How. Pr. (N. S.) 45. An attachment cannot issue against a national bank. Van Reed v. Peoples' Nat. Bank, 173 N. Y. 314; Pacif. Nat. Bank v. Mixer, 124 U. S. 721.

[In any case] IV. That the above entitled action is about to be commenced for the above stated cause and the annexed [or, accompanying] summons therein has been issued [or otherwise state the condition of the cause].

V. That no previous application for an attachment of said defendant's property has been made in this action [except, etc.]. [Jurat.] [Signature.]

[File within 10 days after granting of warrant, in clerk's office.]

FORM No. 829.

Affidavit by agent or attorney.7

[Title of court and cause.]

[Venue.]

A. B., being duly sworn, says:

I. That for years last passed he has been and now is the manager of the plaintiff's business at , and as such has had general charge of and supervision over all the affairs connected therewith; that the transactions hereinafter alleged were had by deponent with the defendant and deponent has personal knowledge of all of the facts which are not herein stated to be alleged on information and belief; that the plaintiff was in no way personally connected with the said transactions with the defendant, and 'has had no dealings with defendant except through deponent, and was at all the times thereof absent from the State and at

II. [As in preceding Form; in negativing counterclaims, allege as in preceding Form ending "over and above all counterclaims known to plaintiff and deponent.'

[Continue as in preceding Form.]

4 This is usual and sufficient (Stoeber r. Thudium, 44 Hun, 70; Am. Exch. Nat. Bank v. Voisin, Id. 85), but it is not essential. Maury v. Am. Motor Co., 25 Misc. 657, 56 N. Y. Supp. 316, and cases cited; Belmont v. Sigua Iron Co., 80 App. Div. 537, 80 N. Y. Supp. 771.

5 For the New York rule requiring this, see Form 817. It was held in Pach v. Orr, 15 N. Y. Civ. Pro. 176, 17 St. Rep. 767, 1 Supp. 760, that this rule did not apply to applications

"8

for attachment. See, also, Davis v. Brooks, 4 Monthly L. Bul. 49.

6 Failure so to do does not affect validity of warrant or the proceedings thereunder. Lewis v. Douglass, 53 Hun, 589, 6 N. Y. Supp. 888.

7 See Hanson v. Marcus, 8 App. Div. 318, 40 N. Y. Supp. 951.

8 To leave out the words "known to plaintiff and deponent does not weaken, but strengthens the affidavit. Lamkin v. Douglass, 27 Hun, 517; Billwiller v. Marks, 21 Civ. Pro. 162.

STATEMENTS OF ABSCONDING AND FRAUD, ETC., SUITABLE FOR PARAGRAPH III OF FOREGOING FORM OF AFFIDAVIT TO OBTAIN ATTACHMENT.

FORM No. 880.

Allegation that defendant is about to depart.9

[Insert in Form 828.] - III. That as deponent is informed and believes, said defendant is about to leave this State in a very short time, and take with him his family, and that he is going to [Europe], and that the sources of deponent's information are [specifying them, and indicating why informant's affidavit is not procured].

That, as deponent is informed and believes, said defendant has packed up a large amount of silver-ware, and other valuables, which said defendant is about to take away with him out of this State, and which are the property of said defendant [stating sources, etc., as above].

That, as deponent is informed and believes, said defendant is making arrangements to convert other portions of his property into cash, with the intention, as deponent verily believes, of removing the same from this State, and in particular [etc., and stating sources, etc., as above.]

FORM No. 831.

Allegation of threat to assign to hinder creditors.10

--

[Insert in Form 828.] III. This deponent says, that, as he verily believes, the said defendant is about to dispose of his property with intent to defraud his creditors. Deponent has, within the past three or four weeks, several times applied to the defendant

9 This is from the Form used in Brewer v. Tucker, 13 Abb. Pr. 76, there held insufficient merely for not specifying the sources of information, or supplying other affidavits from deponent's informants, as indicated above.

See allegations held sufficient in Stewart v. Lyman, 62 App. Div. 182, 70 N. Y. Supp. 936; Fox r. Mays, 46 App. Div. 1, 61 N. Y. Supp. 295; Stevens v. Middletown, 26 Hun, 470. Allegations held utterly insufficient. Rallings v. McDonald, 76 App. Div. 112. 78 N. Y. Supp. 1040.

10 A threat to make an assignment even though made for the purpose of inducing creditors to give forbearance, is not necessarily evidence of fraudu

lent intent. The weight of authority,
in a conflict of cases, is to the effect
that allegations consistent with an
intent to make a lawful assignment
are not enough, but a threat or in-
tention to make an unlawful disposi-
tion must be shown. Compare Boyd
v. Miller, 69 N. Y. St. Rep. 2, 34
Supp. 1026; Lukens Iron Mfg. Co.
v. Payne, 13 App. Div. 11, 43 N. Y.
Supp. 476; National Park Bank v.
Whitmore, 104 N. Y. 297, 6 Centr.
Rep. 361; Durkin v. Paten, 97 App.
Div. 139, 89 N. Y. Supp. 622; An-`
thony v. Stype, 19 Hun, 265; Evans
v. Warner, 21 id. 574; Ross v. Wigg,
34 id. 192; Gasherie v. Apple, 14 Abb.
. Pr. 64; Wilson v. Britton, 6 id. 97;
Farwell . Furniss, 67 How. Pr. 188.

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to pay or secure said debt; and the defendant, on the day of last, promised deponent that he would take an account of his stock, and show plaintiffs a statement of his affairs, and give them security on his stock the next day. He did not call the next day; and deponent, on the day of I went to said defendant, and he told deponent he was not going to take an account of stock or give any security; deponent then told him the plaintiffs would sue him, and he replied that he would pay them twenty-five cents on the dollar for a full release, and if they would not accede to that he would put his property out of his name, and he would make an assignment preferring others, and plaintiffs could not get anything; and he would go right on doing business under somebody else's name.

FORM No. 832.

Allegation of fraudulent transfer of property.11

[Insert in Form 828.] III. That the defendants have assigned, secreted and disposed of their property with intent to defraud their creditors, or are about to assign, dispose of and secrete their property with the like intent.

in

[Corroborating affidavits to the following effect were annexed:] I spoke to defendant Y. Z. yesterday, at No.

street,

He told me that his firm were wholly insolvent

If threats are relied upon, there must be evidence that they were made by the defendant or by a person authorized to speak for him. Evans

v. Warner, 21 Hun, 574.

11 From Catlin v. Ricketts, 91 N. Y. 668.

If the facts are as consistent with an honest intent, fraud may not be inferred. First Nat. Bank v. Wallace, 4 App. Div. 382, 38 N. Y. Supp. 851; Bernard v. Cohen, 27 Misc. 794, 58 N. Y. Supp. Supp. 363.

The following cases on the question what circumstances in transfers of property manifest intent to defraud creditors, may aid the practitioner in drawing or testing affidavits. Compare cases in arrest on the same ground, in note 77 to Form 943.

Large sales for cash, and indisposition to disclose condition of affairs, followed by an assignment for benefit of creditors, held insufficient. Stringfield v. Fields, 13 Daly, 171, 7 Civ. Pro. Rep. (Browne) 356. Sale of

business and assets for an undisclosed amount, and disappearance of debtor, held insufficient. Mohlman Co. v. Landwehr, 87 App. Div. 83, 83 N. Y. Supp. 1073.

Disappearance of goods unaccounted for, and proposal of a fraudulent scheme, held enough. Frankel Hays, 20 Wkly. Dig. 417.

17.

Pending application for appointment of receiver, coupled with unusual shipment of raw material by a manufacturing company, not enough. Shuler v. Birdsall Mfg. Co., 17 App. Div. 228, 45 N. Y. Supp. 725.

As evidence of intent to defraud, imprudent buying, and opening branch house to sell out, held not enough. Mack v. Jones, 31 Fed. Rep. 189.

Assignment of all goods without actual consideration, not enough. Grosvenor v. Sickle, 2 N. Y. Supp. 40, 28 Wkly. Dig. 90.

Admission of insolvency, and statement of intent to dispose of all prop

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