Adler v. Order of Am. Fraternal Circle of Baltimore City

Majority

p. 233

ADLER v. ORDER OF AM. FRATERNAL CIRCLE OF BALTIMORE CITY.

N. Y. Supreme Court, Special Term, First District;

May, 1892.

Headnote

JLttachment ; affidavit.] To give the court jurisdiction to grant an attachment against a foreign corporation the affidavit, in addition to setting forth a cause of action for which an attachment might be granted, must also set forth facts to show that the action could be maintained against such a corporation tinder Code Civ. Pro. 1780. If the affidavit is defective in this arespect, the attachment cannot be sustained, although the

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court has obtained jurisdiction of the person of the defendant by the service of summons and the necessary facts appear by the filed complaint.

2. Amendment of affidavit.1 Such a defect in the affidavit is jurisdictional and cannot be cured by amendment.

Motion to vacate an attachment. '

The attachment was granted on the following affidavit : “ Carrie Adler, being duly sworn, says she is the plaintiff herein; that the defendant is a foreign corporation organized under the laws of Maryland; that the plaintiff’s cause-of action arises out of the following facts : That heretofore, and on or about the 24th day of February, 1891, she-was duly proposed, accepted and became a member of said, society or corporation, and became entitled to the benefits-provided for by the constitution and by-laws of the defendant, and among other things the sum of twenty-five dollars-per week if she became sick, and to receive said sum for a period not longer than eight weeks; that between and on. or about the 15th day of November, 1891, and the 15th! day of January, 1892, this plaintiff did become sick, therefore entitled to the said sum of twenty-five dollars per week for eight weeks, making in all the sum of 200 dollars and of which illness and claim plaintiff duly notified this defendant; that the said sum of 200 dollars is now due and owing the plaintiff above all counterclaims and set-offs known to plaintiff and deponent. Wherefore deponent prays for a warrant of attachment against the defendant. [Signature andjurat.] ”

The motion to vacate was made upon the ground that the affidavit was defective in that it did not state that plaintiff was a resident of this State or that the contract was made here, and that, therefore, it did not show a cause of action against a foriegn corporation within Code Civ.. Pro. § 1780.

In support of the attachment it was claimed that it had been issued after the service of the summons; that

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the plaintiff was in fact a resident of this State, and that it so appeared by the complaint, which was on file.'

Gruber & Landon, defendants’ attorneys, for the motion.

Hyman & Heinzelman, plaintiff’s attorneys, Opposed.

In an action of this character, by section 1780 of the Code, this court has jurisdiction in an action against a foreign corporation only when it appears that the plaintiff is a resident of this State, or where it appears-that the action is brought to recover damages for breach, of a contract made within this State, or where the cause of action arose within the State.

To give the court jurisdiction to grant an attachment it must appear by affidavit, that a cause of action exists in favor of plaintiff against defendant, and the general term of this court has held that unless the facts appear in the affidavit that give the court jurisdiction of the subject matter of the action, the judge has no jurisdiction to grant the attachment (Oliver v. Walter Heywood Chair Mfg. Co., 10 N. Y. Supp. 771 ). This is distinct from the court acquiring jurisdiction over the person of the defendant. Unless the facts appear to bring the case within section 1780 of the Code, the court has no jurisdiction over the subject matter, and there is therefore no cause of action alleged. This is jurisdictional and cannot be cured by amendments.

The motion must therefore be granted and the attachment vacated; $10 costs to abide the event.