Alber v. Harris — 126 A.D. 504

Majority

p. 504

Lawrence Alber, an Infant, by Conrad Alber, His Guardian ad Litem, Appellant, v. Edwin S. Harris, Respondent.

Third Department,

May 6, 1908.

Headnote

Arrest in civil action — assault and battery — insufficient affidavits.

Although the complaint in an action for assault and battery, verified by the plaintiff’s guardian ad litem, alleges positively that the defendant heat the plaintiff, an order of arrest should not be granted when the moving affidavit of the guardian supplementing the complaint alleges that the affiant derived his information from the plaintiff and a third person whose affidavits are not produced nor their absence explained.

On such motion the verified complaint may be used as an affidavit.

Appeal by the plaintiff, Lawrence Alher, an infant, by Conrad Alber, his guardian ad litem, from an order made by a justice of the Supreme Court, and entered in the office of the clerk of the county of Rensselaer on the 12th day of December, 1907, granting the defendant’s motion to vacate an order of arrest theretofore granted herein.

Ransom H. Gillet, for the appellant.

John T. Norton, for the respondent.

We think the learned court at Special Term correctly vacated the order of arrest against the defendant because of the insufficiency of the moving papers. It may be conceded that it was proper to use the verified complaint as an affidavit as the appellant insists. It is there alleged positively, and not upon information and belief,

p. 505

that the defendant did violently, maliciously and willfully assault and attack this plaintiff and kick and beat him. But accompanying this complaint, on the application for the order of arrest, was an affidavit made by the guardian ad litem, who verified the complaint, in which substantially the same allegations are made, and the affiant there states that he “ derives his information from the statements of the said infant plaintiff and one Howard Manchester.” When we take the allegations of the complaint and the allegations of the affidavit together, as we must, it is altogether clear that the affiant has no personal knowledge of the statements made by him positively in the complaint, and that his source of information in relation thereto is the statements of the infant and the said Howard Manchester. There was, therefore, no legal evidence before the court justifying the order of. arrest. The entire matter rested on hearsay, and neither the affidavits of Manchester nor of the infant plaintiff were produced, nor the absence of such affidavits explained. Neither is it shown what either of these persons communicated to the affiant. The court, therefore, was without any competent evidence to justify the granting of the order, and it was properly vacated on the moving papers on the defendant’s motion.

The order should be affirmed, with ten dollars costs and disbursements.

All concurred.

Order affirmed, with ten dollars costs and disbursements.