Globe Yarn Mills v. Bilbrough — 2 Misc. 100

Majority

p. 100

Globe Yarn Mills v. Bilbrough.

(New York Common Pleas

General Term,

December, 1892.)

Headnote

The City Court of New York has jurisdiction of an action brought by a foreign corporation against a domestic corporation upon a negotiable instrument, although the cause of action did not arise in the city of New York, and neither of the parties resided there, nor was the summons served therein.

[n an action by a foreign corporation upon a promissory note given for goods sold and delivered, one H., who obtained the note from plaintiff’s treasurer, to whose order it was payable, and upon H.’s affidavit that the plaintiff was entitled to recover the amount of the note, with interest thereon, over and above all counterclaims and offsets known to the plaintiff or deponent, an attachment was obtained. Held, that the affidavit was sufficient.

In granting provisional remedies, the courts do not proceed upon the technical rules of evidence regulating the final determination of rights of parties on a trial, but allow affidavit evidence, dispense with cross- • examination, and are content with prima, facie proof.

Where a motion to vacate an attachment proceeds upon the papers upon which it was granted, plaintiff is entitled to all legitimate inferences from the facts shown.

Appeal from orders of the General Term of the City Court, affirming orders denying motion to vacate attachments.

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Plaintiff is a foreign corporation. Defendants move on the papers upon which the attachments issued. The opinion gives the necessary facts.

Ira B. 8tewm% for defendants (appellants).

Arthwr P. Hodgkins, for plaintiff (respondent).

The grounds upon which the orders are impugned are, as to action No. 3, that it is beyond the jurisdiction of the court, and no evidence appears to warrant the attachment.

Action No. 3 is on a negotiable note made at Cohoes and payable at Troy. The cause of action did not arise in the city of New York; neither of the parties resides here, nor was the summons served in the city.

Appellants argue that because, upon this condition of fact, the Court of Common Pleas would not have jurisdiction of the action, it is a necessary inference that the City Court also is without jurisdiction. But the conclusion is a non sequitwr. It may be an anomaly, but it is not a legal impossibility, that the appellate tribunal should not have original jurisdiction of a matter which is within the cognizance of the subordinate court. It is within the power of the legislature to perpetrate a legal solecism; and the question of jurisdiction must be solved by reference to the statute.

Of any action for a sum of money not exceeding $2,000, “ against a natural person, or a foreign or domestic corporation,” the City Court has jurisdiction. Code, §§ 315, 316. By section 1779, “an action .may be maintained by a foreign corporation in like manner and subject to the same regulations as where the action is brought by a domestic corporation, except as otherwise specially prescribed by law.” It is not controverted that the City Court has jurisdiction of an action by a domestic corporation, and it is not pretended that any special provision of law restricts the concession of jurisdiction as to foreign corporations. It is not denied that the defendants are resident in the state of New York, nor that the sum

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mons was duly served upon them pursuant to section 3110 of the Code. Upon this state of fact there is no escape from the conclusion that the court below has jurisdiction of the action.

In defeat of the attachments in all the actions, the appellants contend that the affidavit is insufficient, in not showing by competent and adequate evidence that “ the plaintiff is entitled to a sum stated therein, over and above all counterclaims known to him.” Code, § 636. The affidavit is in three actions, is made by the same person, and touching the point in question, is as follows : “ The plaintiff is entitled to recover the amount of the note” (inaction No. 3), “of the draft” (in actions Nos. 1 and 2) “ with interest thereon, over and above all counterclaims and offsets, known to the plaintiff or deponent.” It is observed that, as to counterclaims and offsets, the affirmation is positive and absolute, not upon information and belief; and appellants’ contention is, that “ it is not shown that the affiant has any knowledge of the plaintiff’s business, general or specific, or any connection therewith, and, therefore, Ms positive statement as to no counterclaim or offset can have no weight.”

The statute does not require an affidavit that there are no counterclaims; but only that there are none known to the plaintiff. The statement of the affiant as to his own knowledge is, of course, free from criticism; but, not his knowledge but the knowledge of the plaintiff is in controversy. The plaintiff, bemg a corporation, can have no knowledge; and, therefore, the question is as to the knowledge of officers most-likely to be informed as to the corporate liabilities.

The instruments in suit, were given for goods sold by the plaintiff to the defendants, and so of themselves import an absence of any counterclaim. It is common knowledge that in the transactions of trade, buyers usually give notes or drafts only for the balance of account; and the presumption thus arising from the general course of business between mercantile men, afforded the affiant some ground, not of belief, only, but of knowledge, that no counterclaim existed agamst the debt m action. Furthermore, the affiant got the rnstru

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ments from the plaintiff’s treasurer, to whose order, indeed, they were payable; that officer is presumed to he familiar with the financial condition of the plaintiff; and hence, here is another avenue of intelligence by which the affiant might have come to know if any counterclaim existed against the plaintiff’s demand.

Having the means of knowledge, and deposing positively to the fact, the inference is that the affiant had knowledge of the fact.

Since, then it is only in case the affiant could not have had knowledge of the fact, that his positive affirmation is insufficient and inadmissible, and as here he might have known the fact in the sense that all save pedants employ the word, namely, a conviction of a fact upon satisfactory evidence —• have known it in the only way possible to ascertain that no counterclaim existed, that is, by a process of inquiry and inference, we hold the affidavits to be competent and adequate to sustain the orders.

The statute is remedial, and should not be nullified by a literal construction. Upon such construction a corporation plaintiff could never obtain an attachment; for a corporation is incapable of knowledge. Upon such construction an affidavit by plaintiff’s treasurer even, would not suffice, for he cannot be supposed to know but that upon matter subsequent to a sale a counterclaim may not have arisen, as for breach of warranty, or some other agreement, express or implied, of the corporar tion. In granting provisional remedies courts do not proceed upon the technical rules of evidence regulating the final determination of the rights of parties on a trial. They allow affidavit evidence; they dispense with cross-examination ; they are content-witli prima facie proof. If from the evidence before them an inference of the requisite fact may be drawn sufficiently cogent to satisfy their judgment, it is enough to authorize the order. Code, § 636.

The proposition upon which this opinion proceeds, is sustained by the authorities cited by the appellants themselves. “ The true rule is, that the statements in affidavits will be presumed

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to be made on personal knowledge except where it appears affirmatively or by fair inference that they could not have been, and were not made on such knowledge.” Van Brunt, P. J., in Crowns v. Vail, 51 Hun, 205 . “ An affidavit by an agent must contain something to enable the court to see how he did or could know the facts, or which showed that the relations between him and the plaintiff to be such as to raise a presumption that he might have personal knowledge as to the fact. The provisions of the statute must be substantially observed. Buhl v. Ball, 41 Hun, 61 , 64. “ The witness will not be allowed to testify to a fact positively, when it is plain he can have no actual knowledge on the subject.” Ellisons. Bernstein, 60 How. 145 . “An affidavit for attachment made by the president of plaintiff’s bank averring that there are no counterclaims within his knowledge to the demand sued on, is sufficient without showing. that the affiant had knowledge of all the transactions between plaintiff and defendant out of which counterclaims might have arisen.” Essex Bank v. Johnson, 16 N. Y. Supp. 11 , General Term Supreme Court, first department. “ It is not necessary now, in order to secure the benefit of the provisional remedy of attachment, to do more than establish aprima facie case, and this is accomplished when upon all the allegations the court can perceive on sufficient proof chat a demand is due over and above all counterclaims.” Lee v. La Compagnie, 2 N. Y. St. Repr. 612 , General Term first department, Supreme Court.

The motion to vacate the attachments proceeded upon the papers on which they issued. Thus, none of the allegations in those papers being denied, the plaintiff, in support of the orders, is entitled to the benefit of all legitimate inferences from the facts shown, i. e., that no counterclaim exists against the demand in suit.

Orders affirmed, with costs and disbursements.

Halt, Ch. J., and Bischoff, J., concur.

Order affirmed.