Mexico City Banking Co. v. McIntyre — 105 A.D. 492

Majority

p. 492

Mexico City Banking Company, Respondent, v. Philip McIntyre, Appellant.

Headnote

Attachment — what corroboi-ation, consisting of proof of the defendant’s admission of the facts sworn to by the plaintiff’s attorney on information and, belief, is sufficient to sustain it. '

Upon a motion for a warrant of attachment, the affidavit of one of the plaintiff’s attorneys was presented, which alleged upon information and belief that the defendant obtained, upon a forged draft, the sum of §800 from, the plaintiff in the city of Mexico; that the source of the deponent’s information was telegraphic communications from his partner, who was then in the city of Mexico, and from conversations with a representative of a detective agency. The communications from the deponent’s partner were not made a part of the affidavit nor was it stated therein what the communications were. An affidavit of an employee of the plaintiff’s attorneys was also presented in which the deponent swore that he was present when the defendant was arraigned before a police magistrate and that he heard the defendant state to the magistrate that he desired to plead guilty before a United States commissioner to the charge made by the plaintiff of having forged and cashed the draft upon which the action was based.

Held, that the first-mentioned affidavit, standing alone, was insufficient to authorize the warrant of attachment, but that the two affidavits, taken together, were sufficient for that purpose.

Appeal by the defendant, Philip McIntyre, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 21st day of February, 1905, denying the defendant’s motion to vacate an attachment theretofore issued in the action.

William G. Rosenberg, for the appellant.

James Harold Warner, for the respondent,

The defendant moved to vacate a warrant of attachment upon the papers upon which the attachment was granted upon the ground that the affidavits presented did not show that a cause of action against the defendant existed. (Code Civ. Proc. § 636.) An affidavit of one of the plaintiff’s attorneys alleged upon information and belief that the defendant obtained by a forged draft the sum of $800 from the plaintiff in the city of Mexico; that the source of deponent’s information was telegraphic communications from his partner, then in the city of Mexico, and from conversations with a representative of Pinkerton’s Detective Agency. The communications from the deponent’s partner in Mexico are not made a part of the affidavit,nor is it stated what the communications were. This affidavit, standing alone, was insufficient, but there was also presented an affidavit of an employee of the plaintiff’s attorneys in which he swears that he was present when the defendant was arraigned before a police magistrate and heard the defendant state to the magistrate that he desired to plead guilty before a United States commissioner to the charge made by the plaintiff, of having forged and cashed at its bank a draft for $800, purporting to be drawn by the cashier of the First National Bank of Chicago, payable to the defendant at the Hanover National Bank of New York and that the draft, the forgery of which defendant pleaded guilty to, is the same draft upon which this action is based.

This allegation corroborated the information received from one of the plaintiff’s attorneys in Mexico, and the two affidavits together are sufficient to show that a cause of action in favor of the plaintiff against, the defendant existed.

The motion to vacate the attachment was, therefore, properly denied, and the order appealed from is affirmed, with ten dollars costs and disbursements.

Patterson, McLaughlin and Laughlin, J J., concurred.

Order affirmed, with ten dollars costs and disbursements.