Cousins v. Schlichter — 135 A.D. 779

Majority

p. 779

Thomas Cousins and Joseph B. Cousins, Respondents, v. Edward F. Schlichter, Appellant.

Second Department,

December 10, 1909.

Headnote

Attachment — non-residence of defendant—when moving papers insufficient.

The court cannot issue a warrant of attachment on the ground that the defendant " is a non-resident unless the moving papers state facts upon which it may base a finding" of non-residence; Mere allegations stating the belief of the moving party as to the non-residence of the defendant are insufficient.

Thus, an attachment cannot be granted upon an affidavit which after alleging that the defendant is not a resident of this State but resides in Pennsylvania, states that the deponent’s knowledge as to the fact of non-residence is based

■ upon conversations had with the defendant personally, upon correspondence with him, and upon the letter-heads of written communications received from him, showing that he is a manufacturer of certain goods with offices-at a certain place in Pennsylvania, etc.

Appeal by the defendant, Edward F: Schlichter, from an order of the Supreme Court, made at the Kings County Special Térm and entered in the office of the clerk of the county of Kings on the 20th day of August, 1909.

Walter H. Griffin, for the appellant.

John D. Fearhake, for the respondents.

Tliis is an appeal from an- order denying a motion to vacate a warrant of attachment. The papers upon which it Was granted are-challenged upon two grounds, to wit: (1) For not stating the facts to show the extent of the damages claimed (the action is for negligent injury to property); (2) for not stating sufficient facts to show that the defendant was a non-resident. I shall notice only the latter ground. I quote the statement of the affiant relative to the subject of the defendant’s residence, viz.: “ That the defendant in said action, Edward F. Schlichter, is not a resident of the State of New York, but that he resides in the city of Philadelphia, State of Pennsylvania. The deponent’s knowledge as to the fact that defendant is not a resident of the State of New York is based upon conversations had with defendant personally, and upon correspondence between plaintiffs and defendant,'upon the letter- ' heads of the letters received from defendant in such correspondence, it being stated that defendant is the manufacturer of Philadelphia Standard Water Towers, -Water and Steel Tanks for all purposes, ‘ Philadelphia ’ patent Silo and Patent Eoof, with his office at 1910 Market Street, Philadelphia, Pa., and with works at Norristown, Pennsylvania.”

It will be observed that no fact is stated upon which the judicial mind can base a conclusion. The affiant states as of his own knowl- - edge that the defendant is a non-resident of the State of New York and resides in the State of Pennsylvania, but that statement is so qualified as to show that it was made on information and belief. The affiant states that his knowledge is based on conversations with the defendant. It is apparent that he means “ belief,” not “ knowledge.” But it does not suffice that the affiant may be satisfied of the truth of. what he states on information and belief. The court, not he, must decide the fact. If the conversations referred to had been stated, the court might conclude that they did not justify that belief or a finding by the court in accordance with it. The further statement that the defendant’s letter-heads show that he has an office in Philadelphia and a manufacturing plant at Norristown is not sufficient to establish non-residence. The ground of the attachment was that the defendant was a, non-resident. (See Code Civ. Proc. § 636, subd. 2.) The court was required to find as a fact

p. 781

that the defendant was a non-resident, before granting the order, but the papers before it disclose nothing upon which to base such a finding except the opinion of one of the plaintiffs and that does not suffice.

The order should be reversed and the motion granted.

Hirsohberg, P. J., Woodward, Jenks and Thomas, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.