Banque Agricole of Roumania v. Ungureanu — 15 N.Y. Crim. 139

Majority

p. 139

Supreme Court—Appellate Division—First Department.

July, 1900.

BANQUE AGRICOLE OF ROUMANIA v. SIEUR I. N. UNGUREANU.

(53 App. Div. 254.)

Headnote

Order of arrest—Affidavit to obtain.

An affidavit by the German consul in New York, stating on information and belief, that defendant stole a sum named from a certain bank in Roumania, and that the source of affiant’s information and the grounds of his belief is a cable telegram received by affiant in his official capacity signed “ Acting German Consul Strare,” is insufficient to .justify the granting of an order of arrest.

Appeal by the defendant, Sieur I. N. Ungureanu, 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 nth day of June, 1900, denying the defendant’s motion to vacate an order of arrest theretofore granted in the action.

Henry M. Goldfogle, for the appellant.

Dulon & Roe, for the respondent.

The motion was made upon the summons, order of arrest and affidavit of Alfred Geissler, upon which the order of arrest was granted, who, as therein stated, is a consul of the German empire in the city of New York and the agent of the plaintiff for the purposes of this action. He alleges, on information and belief, that on or about May 15» 1900, at Galatz, in Roumania, the defendant wrongfully took and stole from the plaintiff, a banking institution organized under the laws of Roumania, doing business at Galatz, 60,000 francs, of which the plaintiff was the owner, and absconded from Galatz with the stolen money, and that this action is brought to recover the money. The sources of affiant’s information and the grounds of his belief as to the matters stated in the affidavit is a cable telegram received by affiant in his official capacity, signed “ Acting German Consul Struve.”' The message requested the arrest of the defendant, giving a description of him, and stating that he had stolen from the plaintiff 60,000 francs. The affiant states that he verily be-Heves that said telegram emanates from an official source and that the facts therein stated are true. The defendant moved to vacate the order on the papers, upon the ground that the affidavit upon which said order of arrest was granted is insufficient to justify the granting of the same.

The affidavit is wholly upon information and belief, and while it is true that it states the source of information and grounds of affiant’s belief to be the cable telegram referred to, and sets out the message in full, we are of the opinion that such source of information and ground of belief are not sufficient. It cannot be said that the message came from an official source. It purports to be signed by the acting German consul, but the message does not disclose, nor does the affiant state, that the sender had any knowledge of the facts therein stated. Nor does the affiant allege that he has any personal knowledge of the sender or his official character, the only allegation in that respect being as follows: “ I verily believe that said cable telegram emanates from the official source

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from which it purports to emanate, and that the facts therein stated are true.” The message hardly purports to emanate from an official source, and if it did, the facts stated are not shown to be within the knowledge of the sender, but on its face it shows that it is at the request of the first State attorney of Galatz, without naming him, or in any other way referring to his knowledge of the facts. So that the sources of affiant’s information and grounds of his belief are no more evidence of the material facts than is his own statement, while the authenticity of his information is not attempted to be established. There is, therefore, not a single fact stated in this affidavit from which can be derived any basis of support" for the order. It is well settled that statements upon information and belief are not evidence of anything. The courts of New York, at special term, have gone to the extreme in upholding orders which accomplish the detention of fugitives from justice, but in all of the cases where an order has been granted based upon a cable message, there has been proof that the message came from a source upon which the court had a right to rely, but this case shows an utter absence of knowledge of the facts necessary to confer jurisdiction, or of any reliable or trustworthy ground of belief as to such facts.

The order should be reversed, with ten dollars costs and disbursements, and the motion granted, with ten dollars costs.

Van Brunt, P. J., Rumsey and O’Brien, JJ., concurred.

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