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Ennis v. Untermyer

93 A.D. 375 Court N.Y. App. Div. English

Delivered by Willard Bartlett, J. :

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p. 375
Thomas A. Ennis and Charles F. Stoppani, Composing the Firm of Ennis & Stoppani, Respondents, v. Maurice Untermyer, Appellant.

Headnote

Attachment— affidavit on information and belief that defendant had made no designation of a person on whom service could be made —sustained by ah informal county clerk’s certificate—failure of a warrant to recite the grounds thereof.
Where the affidavit, used on a motion for a warrant of attachment under subdivision 2 of section 636 of the Code of Civil Procedure, alleges, on information and belief, that the defendant, having been absent from the State for more than six months, had filed no designation, pursuant to section 430 of the Code of Civil Procedure, of a person upon whom process could be served on his behalf, as appeared by a certificate of the county clerk annexed thereto, a certificate annexed to the affidavit, in which the county clerk states underwritten directions to make a search in hid office for such a designation, “nothing found,” constitutes, although the certificate is not in such a form that it can be used as evidence, -a sufficient basis for the affiant’s information and belief. The failure of a warrant of attachment to recite the grounds thereof is merely an irregularity, and the omission is not available to the defendant on a motion to vacate the attachment unless it is specified in the notice of motion.
Hooker, J., dissented.
Appeal by the defendant, Maurice Untermyer, from án orden of' the Supreme Court, made at the Kings. County Special Term and entered in the office of the clerk of the county of Kings on the 2d
p. 376
day of February, 1904, denying the defendant’s motion to vacate and set aside warrants of attachment theretofore issued herein.
Louis Marshall, for the appellant.
Treadwell Cleveland, for the respondents.

This appeal is based upon two propositions: (1) That the plaintiffs have not established the existence of the jurisdictional fact that the defendant has not made a designation of a person upon whom to serve a summons in his behalf, as prescribed by section 430 of the Code of Civil Procedure; and (2) that the warrants do not comply with section 641 of the Code, because they do not recite any grounds of attachment recognized by the Code.

Subdivision 2 of section 636 of the Code of Civil Procedure* among other things, provides that an attachment may issue “ Where-the defendant, being an adult and a resident of the State, has béen continuously without the State of New York for more than six months next before the granting of the order of publication of the summons against him, and has not made a designation of a person upon whom to serve a summons in his behalf, as prescribed in section four hundred and thirty of this act.” .These, warrants of attachment against Mr, Untermyer were, sought on the ground that he was an absentee under this provision-. The evidence that he had not made the prescribed • designation is found in the following statement in the affidavit of Mr. Ennis, one of the plaintiffs: ,

“I have caused a search to be made in the office of■ the clerk of the County of -New York, and I am informed and believe that, the said defendant has not made a designation of a person upon whom to serve a summons on his behalf, as prescribed by section 430 of the Code, of Civil Procedure, as appears by the certificate of said clerk hereto annexed.” The certificate annexed to the affidavit is.' as'follows:
“New Yobk City, December 10£/¿, 1903.
“ To Thomas L. Hamilton,
" Clerk of the County of New York:
“ Please search in your office for the designation of a person upon Whom service can be made on behalf of Maurice Untermyer (filed.
p. 377
pursuant to the terms of Section 430 of the Oode of Civil Procedure), from November 27th, 1877, to the date hereof and certify the.result to
“ CLEVELAND & CLEVELAND,
“ 27 William Street.
“ Nothing found to December 10th, 1903, at 9 a. m.
“ [seal] Thomas L. Hamilton, Clerk "

We think that this certificate, although not capable of being used? by itself as evidence, constituted a sufficient basis for the affiant’s, assertion of information and belief in his affidavit. In other words, the declaration by the county clerk in this form was information, which “ he had a right to consider well founded,” and upon which, the court could exercise jurisdiction. (Hawkins v. Pakas, 39 App. Div. 506 .)

The second point, to the effect that the warrants do hot sufficiently recite the grounds of the attachment, is not available to the appellant, inasmuch as the omission, if there be'one, is merely an irregularity and is not specified in the defendant’s notice of motion. (King v. King, 68 App. Div. 189 ; Rallings v. McDonald, 76 id.. 112.)

The order refusing to vacate the warrants should be affirmed.

All concurred, except Hooker, J., dissenting.

Order affirmed, with ten dollars costs and disbursements. __ •

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