Price v. Levy — 93 A.D. 274

Majority

p. 274

Edward A. Price and Petera B. Worrall, Respondents, v. David Levy and David Lachman, Appellants.

Headnote

Order of arrest—when the moving papers fail to show personal knowledge by the affiant of the fact that alleged false representations were made by the defendant to á commercial agency.

In an action to recover damages for alleged false representations, by which the plaintiffs were induced to sell goods to the defendants, an application for an order of arrest was made upon the complaint and an affidavit made by one of

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the plaintiffs, which alleged that the defendants, for the purpose of inducing the plaintiffs and other merchants throughout the city of Hew York to sell and deliver to them goods, wares and merchandise upon credit, made a false statement to the commercial agency of E. G. Dun & Co.

The affidavit averred that the false statement read as follows:

“April 10, 1903, at this address, David Levy (one of the defendants) gave our reporter above personal details and dictated the following statement: Financial condition on December 30, 1902, as per inventory (here followed a statement of financial condition). (Signed) D. LEVY & CO.

“April 15,1903.”

The affidavit then continued: “That deponent’s firm of Fred Butterfield & Co. are subscribers to said mercantile agency and obtained said statement from said agency prior to the sale and delivery to the defendants of the goods hereinafter mentioned.”

The plaintiffs did not present the affidavit of any member of the firm of R. G. Dun & Co. or of the reporter to whom the statement was alleged to have been made.

Held, that the moving papers were insufficient to justify the granting of the order of arrest;

That there was nothing to show that the affiant had any personal knowledge that the defendants made or signed the statement attributed to them, or that he ever saw the original statement made to the reporter;

That, on the contrary, it appeared that his knowledge was derived solely from the statement furnished by R. G. Dun & Co., and that the only fair inference to be drawn from all the facts was that the latter statement was not the original statement but a copy thereof;

That it could not be inferred that the statement referred to in the affidavit was in writing and was seen by the affiant, and that the latter knew the signature of the defendants to be correct;

That even if such an inference, could be drawn from the papers, it would not be sufficient to justify the granting of the order, as such an order must be based upon facts set out in the affidavit, and from which, if uncontradicted, the court can see that the party proceeded against is guilty of the charge made against him.

Appeal by the defendants, David Levy and another, 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 26th day of February, 1904, denying the defendants’ motion to . set aside an order of arrest theretofore granted in the action.

Stillman F. Kneeland, for the appellants.

Emanuel J. Myers, for the respondents.

This action was brought to recover damages upon a sale-of goods, wares and merchandise,, which sale was alleged to have been induced by false and fraudulent- statements of the defendants as' to their financial responsibility.

Upon the verified complaint and affidavits an order of arrest was granted, which the defendants, upon the same papers, moved to have- vacated. Their motion was denied, and they have appealed.

The papers upon which the order was granted, so far as such alleged false and fraudulent statement is concerned, were to the effect that the defendants, for the purpose of inducing the plaintiffs and other merchants throughout the city of Hew York to sell and deliver to them goods, wares and merchandise upon credit, made a false statement to the commercial agency of R. G. Dun & Co. The statement thus referred to purports to be set out in the affidavit of one of the plaintiffs and after giving the firm name and business of the defendants, together with their individual names and residences, is as follows:

“ April 10, 1903, at this address, David Levy gave our reporter above personal details and dictated the following statement :■ Financial condition on December 30,-1902, as per inventory:

“ Assets.

“Mdse............................... $7,024.84

“Hotes and Accts. Rec...................... 17,680.71

“ Cash on hand and in bank........;.............. 1,728.16

“ Fixtures.................... 116.50

$26,550.21

“Liabilities.

“ Open account for merchandise;....... 7,140.43

$19,409.78

“ Insurance........ $7,500.

“ (Signed) D. LEVY & CO.

" April 15, 1903.”

The affidavit then continues as follows: “ That deponent’s firm of Fred Butterfield & Co. are subscribers to said mercantile agency

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and obtained said statement from said agency prior to the sale and delivery to the defendants of the goods hereinafter mentioned.”

Manifestly, this proof was insufficient to establish that the defendants made, and signed the statement upon which the plaintiffs allege they relied. Ho facts are stated from which the court can see, or even infer, that the maker of the affidavit had any personal knowledge on the subject; on the contrary, the only fair inference to be drawn from the facts stated in the affidavit is that the affiant’s knowledge is confined to information derived from R. G. Dun & Co., and in this connection it is to be observed that there is no affidavit by any member of the firm of R. G. Dun & Co., or by its reporter to whom the statement is alleged to have been made, nor even is the name of this reporter given. This brings the case therefore, directly within the principle laid down in Hoormann v.. Climax Cycle Co. ( 9 App. Div. 579 ), where this court held that, the averments of facts as upon personal knowledge in an affidavit, made to procure an attachment is not sufficient, unless circumstances are stated from which the inference can fairly be drawn that the affiant has personal knowledge of the facts which he alleges. This case was followed in Einstein v. Climax Cycle Co. ( 13 App. Div. 624 ), and followed, or the same principle reasserted, in Tucker v. Goodsell Co. (14 id. 89); Lehmaier v. Buchner (Id. 263); Shuler v. Birdsall Manufacturing Co. (17 id. 228); Wallace v. Baring (21 id. 477); Martin, v. Aluminum Plate Co. (44. id. 412); James v. Signell (60 id. 75).

Here, as already indicated, there is nothing to show that the affiant had any personal knowledge that the defendants made or signed the statement attributed to them, or that he ever saw the original statement; on the contrary, it appears that his knowledge is derived solely from the statement furnished by R. G. Dun & Co., and the only fair inference to be indulged in from all the facts stated is that this statement was not the original, but a copy. The original was made on the 10th of April, 1903, as appears from the following recital in the one furnished: “ April 10, 1903, at this address, David Levy gave our reporter above personal details and dictated the following statement.” The one furnished was not dated April 10, but April 15, 190‘3. '

The learned justice at Special Term was of the opinion that from

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tha facts stated in the affidavit of one of the plaintiffs it could fairly be inferred that the statement referred to was in writing and was seen by the affiant, and that he knew the signature of the defendants to be correct. No'such inference can fairly be drawn from the papers, and if it could, it would be insufficient. A mere inference will not justify the granting of an order of arrest. Such order must be based upon facts set out in the affidavit, and from which, if ¡uncontradicted, the court can see that the party proceeded against is guilty of the charge made against him.

The order appealed from, therefore, must be reversed, with ten ■dollars costs and disbursements, and defendants’ motion to vacate granted, with ten dollars costs.

Vah Brunt, P. J., Patterson, Ingraham and Hatch, JJ., concurred.

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

Cases cited

Hoormann v. Climax Cycle Co. 9 App. Div. 579 N.Y. App. Div. 1896-11-06 p. 277