Wilson v. Puritan Steamship Co.

Motion to vacate an attachment on the original papers. The affidavit on which the attachment was granted was made by the plaintiff, who is the assignee of an assignee. There is no averment connecting the plaintiff with the transaction between the original parties, both of which are English corporations, nor anything from which it can be implied that he had knowledge, or could have had knowledge, of the character of the defendant. The cause of action is apparently based on a foreign judgment. Without passing on the question whether this is sufficiently pleaded, the affidavit is defective, under the rule applied at least in this department, in that the ground of attachment, the nonresidence of the defendant, is insufficiently set out. The sole allegations on this point are:

“Deponent further says that the defendant is a nonresident of the state of New York, being a corporation created, organized, and existing under and by virtue of the laws of the United Kingdom of Great Britain and Ireland, as above set forth.”

All that has been previously set forth, in addition to the statement quoted, is that the defendant has an office at a specified place in the -city of Liverpool. Although these allegations are in form made as if on positive knowledge, it is clear from the whole affidavit that the affiant makes them as a stranger to the transaction between the original parties. It is in effect a mere averment on information, without disclosure of the sources, and without proof of the facts as averred. The Appellate Division in this department has repeatedly declared such an affidavit jurisdictionally defective. Hoormann v. Climax Cycle Co., 9 App. Div. 579 , 41 N. Y. Supp. 710 ; Tucker v. Goodsell Co., 14 App. Div. 89 , 43 N. Y. Supp. 460 ; James v. Signell, 60 App. Div. 75 , 69 N. Y. Supp. 680 . Neither Box Board & Lining Co. v. Vincennes Co., 45 Misc. Rep. 1 , 90 N. Y. Supp. 836 , affirmed 98 App. Div. 623 , 90 N. Y. Supp. 1089 , nor Randolph v. Susquehanna W. P. & P. Co., 12 App. Div. 479 , 42 N. Y. Supp. 411 , have changed the local rule. In the Box Board Case the court sustained the affidavit because the “affiant is an officer of the plaintiff’s assignor and was personally familiar with the transactions in suit”; and in the Randolph Case the transaction in question, sworn to by the original creditor, took place in the foreign state, and the indebtedness to the affiant by the defendant corporation was there established. In that case the court say:

“However stringent may be the rule that an affidavit made upon positive knowledge will not be sufficient to warrant the granting of an attachment, unless the affiant not only swears of his knowledge, but shows that he must bave known the fact as to which he avers, yet the facts shown in the plaintiff's affidavits are sufficient to raise a presumption that the matter was, or might have been, within his personal knowledge.”

There is not a fact averred in the papers before me to permit the inference that the assignee of the assignee of the original judgment Lnew or could have known the character of the defendant as a foreign corporation.

Motion granted, with $10 costs.