Gladke v. Maschke , 42 N.Y. Sup. Ct. 476 ( 1885 )

PbR CueiaM:

The application to vacate the attachment proceeded upon the ground - that one of the plaintiffs causes of action as they were set forth in the complaint, was for damages sustained by the sale and delivery of goods induced by false and fraudulent representations. But while this was the form of the statement first made in the complaint of the plaintiffs cause of action, it was followed by another statement plainly relating to the sale of the same goods, alleging. tbem to bare been purchased when the defendant was insolvent and unable to pay for them, and with the intent and design not to pay for the goods, but to cheat and defraud the plaintiffs out of their value. And following these allegations was the further allegation that the defendant had converted the goods and merchandise to his own use. By an affidavit upon which the attachment was issued, a conversion of the goods by the defendants was also'charged, and in the attachment itself the cause of action is stated to have been one for the wrongful conversion of personal property. . These statements, inasmuch as the demand was the same which was referred to in the first as it was in the second subdivision of the complaint, presented the case of an action for damages for the conversion of personal property, and within subdivision 2 of section 635 of the Code of Civil Procedure that entitled the plaintiffs to an attachment, inasmuch as the other grounds required by the Code for that purpose were established by affidavits. The case of Wittner v. Von Minden (27 Hun, 234), is therefore not an authority sustaining this appeal, and it may be,'inasmuch as subdivision 2 of section 3342 was not consideied in the decision of that case, that it has proceeded upon an erroneous theory of the law as that was construed in Bogart v. Dart (25 Hun, 395). The demand sustained in the plaintiffs’ favor was one for which an attachment could be issued, and the order denying the motion to vacate it should be affirmed, with ten dollars costs besides the disbursements.

Present Davis P. J., Beady and Daihels, JJ.

Order affirmed, with ten dollars costs and disbursements.