National Milk Products Mfg. Co., Inc., Respondent, v. Roger W. Gerard, Appellant

First Department, December, 1921. National Milk Products Mfg. Co., Inc., Respondent, v. Roger W. Gerard, Appellant. Attachment — action on contract — warrant issued on ground that defendant was threatening to dispose of his property — warrant vacated where moving papers tend to show merely that property being sold was that purchased from plaintiff for resale and where the affidavits stale declarations by third persons without a showing that said third persons refused to make affidavits. Appeal by defendant from an order of the Supreme Court, made at the New York Special Term and entered in the New York county clerk’s office June 27, 1921, denying its motion to vacate an order of attachment. [MAJORITY — Per Curiam:] Per Curiam: Aside from the action being on contract, the sole ground upon which the plaintiff applied for the warrant of attachment is that the defendant was threatening and intending to dispose of his property for the purpose of defrauding his creditors. The only property the moving papers tend to show that the defendant was offering for sale and selling is the cheese, for the recovery of the purchase price of which the action is brought. Presumably the cheese was purchased for the purpose of reselling. For the most part, the affidavits presented by the plaintiff are with respect to declarations made by third parties, and it does not appear that they were requested to or refused to make affidavits. We are of opinion that the moving papers fail to show by competent evidence that the defendant threatened to dispose of his property for the purpose of defrauding creditors. It follows that the order should be reversed, with ten dollars costs and disbursements, and motion to vacate the attachment granted, with ten dollars costs. Present — Clarke P. J., Laughlin, Dowling, Page and Merrell, JJ. Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.