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Selser Bros. v. Potter Produce Co.

28 N.Y.S. 428 Court N.Y. Gen. Term Decision date 1894-04-13 English

Delivered by *429 PARKER, J.

Contents

Majority

p. 428
(77 Hun, 313.)
SELSER BROTHERS CO. v. POTTER PRODUCE CO. et al.
(Supreme Court, General Term, First Department.
April 13, 1894.)

Headnote

Attachment—Affidavit.
An affidavit, the material allegations of which are on information and belief, is insufficient where the source of information is in affidavits on file in the court, which are referred to, but are not quoted from, and no part of their contents set out, so that the court may know what facts are stated therein.
Appeal from special term, New York county.
Action by the Selser Brothers Company against the Potter Produce Company. From an order vacating and setting aside an attachment, judgment, and execution on motion of Charles H. Kuske, a junior attaching creditor, plaintiff appeals. Reversed.
Argued before VAN BRUNT, P. J., and FOLLETT and PARKER, JJ.
Elon S. Hobbs, for appellant.
J. B. Leavitt, for respondent.

Plaintiff and defendant were foreign corporations when this action was commenced, and the affidavit upon part the granting of the attachment was based did not set forth that the contract sued on was made, or that the cause of action arose, within this state. The attachment, therefore, was improperly granted. Smith v. Milk Co., 70 Hun, 348 , 24 N. Y. Supp. 79 .

Nineteen days afterwards, the defendant, in writing, offered to allow the plaintiff to take judgment against it for a sum which was about 25 per cent, less than that for which a recovery was demanded in the complaint. The offer was accepted on that day, and judgment accordingly entered, on which execution was issued to the sheriff who had levied the attachment. The motion which resulted in the order appealed from was made by Charles H. Kuske, who based "his right to make it upon the claim that he had acquired a lien upon the property after plaintiff had issued its execution. The vacation of the attachment merely would not, of course, have accomplished his purpose; for, as we have already observed, subsequent to that event, judgment had been entered after a general appearance in the action, upon an offer of judgment by the defendant, and, by virtue of the execution issued thereon, the sheriff was in a position to enforce collection of the amount for which the plaintiff had obtained judgment. So the moving party asked and •obtained the further order of the court that the judgment and the ■execution issued thereon be vacated and set aside. This part of the relief asked was granted upon the authority of Robinson v. Navigation Co., 112 N. Y. 315 , 19 N. E. 625 , in which it was held: First, that prior to the statutory enactment which, with some amendments, has become incorporated into section 1780 of the Code of •Civil Procedure, the supreme court could entertain actions between foreign corporations or nonresident parties plaintiff and defendant, ■even though the cause of action did not arise, or the contract sued upon was not made, within the state; second, that, while the court had jurisdiction in such cases, it would not always take jurisdiction, and could of its own motion dismiss the action when the facts •should come to its knowledge; third, that the effect of section 1780 -of the Code of Civil Procedure is to so limit the jurisdiction of the court as to absolutely confine it to the cases therein specified. The attention of the court does not seem to have been directed to the •question whether it was within the power of the legislature to thus restrict and confine the jurisdiction of the supreme court. The •constitution provides that “there shall be the existing supreme court with general jurisdiction in law and equity.”[1] The fact is, as asserted in Robinson’s Case, supra, that formerly the court had general jurisdiction in actions like the one now under consideration. Whether, under the constitution, creating the three departments of government, and prohibiting either from interfering with the powers and duties committed to the other, the legislature has authority to cut down the jurisdiction of the supreme court in the manner attempted by section 1780, presents a question of such im

1 Article 6, § 6.

p. 430
portance that it would have received careful consideration in the court of last resort had that court been invited to consider it. But that question need not be determined on this review, for, as we view it, the party had not acquired such a lien upon and interest in the property attached by this plaintiff as gave him a standing to make the motion. The affidavit upon which his attachment was granted is defective, in that the important allegations are all upon information and belief, the source of information being said to be .contained in affidavits on file in this court. The affidavits referred to are not quoted from, nor are their contents, nor any portion of them, stated; so the court was not put in possession of the facts affirmed therein. The respondents cite, in support of this affidavit, Whitney v. Hirsch, 39 Hun, 325 , and Bennett v. Edwards, 27 Hun, 352 . In Whitney’s Case the affidavits were copied "in the moving affidavit, and a reason assigned for copying the affidavit, and referring to the original, instead of producing the affidavit of him who made it; the reason given being that he was unable to procure an affidavit from the person making the one then constituting a part of the records of the court, and it was held sufficient. In Bennett’s Case the affidavit on which the attachment was granted not'only quoted from the affidavit on file in the clerk’s office, but gave the reason why the plaintiffs were unable to obtain the affidavit of the person having positive knowledge; and the court said that having given the names of the persons from whom the information was derived, and quoted their affirmations, and, in addition, presented satisfactory excuses for failing to produce an affidavit of the person having positive knowledge, it was sufficient. . Such is undoubtedly the general rule. Bank v. Ward, 35 Hun, 395 ; James v. Richardson, 39 Hun, 400 . But this affidavit is, as we have pointed out, quite different; and no case has been called to our attention, nor do we think can be, which upholds it. There are other defects, but they need not be referred to, for it is clear that the affidavit upon which Kuske obtained his attachment was so defective as would have led to its being vacated upon a motion by any party having a standing for such a purpose; but he insists, here that, while he has a standing to attack the warrant of attachment issued on behalf of the plaintiff, the plaintiff cannot in-turn challenge the validity of the one granted on his application. This position is not well taken. Section 682 of the Code of Civil' Procedure authorizes a defendant or a person who has acquired a lien upon the attached property to apply to the court to vacate the-warrant of attachment. It is apparent from the language of the-section that it is necessary for the party making such an application to demonstrate that he has a lien upon the property covered . by the attachment which he seeks to set aside; and, whether he has, the party whose attachment is assailed may call in question on the motion, to the end that it may be determined whether the-moving party has a standing to make the motion which the debtor either cannot or will not make. This section was so construed, and we think correctly, in Delmore v. Owen, 44 Hun, 296 . Having reached the conclusion that the moving party had no standing to.
p. 431
make the motion, it follows that the order should be reversed, with $10 costs and printing disbursements, and the motion denied, with $10 costs. All concur.

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