Nason Manuf'g Co v. Craft Refrigerating Mach. Co.

Majority

p. 1031

NASON MANUF’G CO v. CRAFT REFRIGERATING MACH. CO.

(Supreme Court, General Term, First Department.

November 16, 1894.)

Headnote

1. Attachment—Affidavit.

In an action for goods sold, an affidavit for an attachment, which states that “the sum therein mentioned is justly due and owing from the defendant to plaintiff, and that plaintiff is entitled to recover that amount from defendant over and above all counterclaims,” sufficiently alleges an indebtedness to sustain the attachment, though it does not state that the goods were reasonably worth any sum.

S. Same—Officer of Corporation.

An affidavit by the officer of a corporation is sufficient where it states that the complaint is true “of his own knowledge,” though it does not allege that he was an officer when the indebtedness sued for was incurred.

Appeal from special term, New York county.

Action by the Nason Manufacturing Company against the Craft Eefrigerating Machine Company. From an order denying a motion to vacate an attachment, defendant appeals. Affirmed.

The affidavit on which the attachment was granted is as follows:

Samuel Greason, being duly sworn, says: That he is treasurer and general manager of the Nason Manufacturing Company, the plaintiff herein. (1) That the plaintiff above named, a domestic corporation, organized and created under the laws of the state of New York, is entitled to recover from the defendant above named, the Craft Refrigerating Machine Company, the sum of ten hundred and seventy-eight and 73-100 ($1,078.73) dollars, with interest from the 22d day of August, 1894, over and above all counterclaims known to the plaintiff or to any of its officers or agents, upon one of the causes of action mentioned in section 635 of the Code of Civil Procedure, and particularly set forth in subdivision 2 of this affidavit. (2) That this action is brought to recover damages for a breach of contract, express or implied, other than the contract to marry, to wit, the refusal to pay as agreed the sum of $1,078.73, as more fully appears in the complaint herein, verified the 5th day of September, 1894. That no part of said sum of $1,078.73 has been paid, and the whole amount thereof, with interest from August 1, 1894, remains justly due and owing thereon from defendant to plaintiff, over and above all offsets and counterclaims known to plaintiff, or to any of its officers or agents. (3) That the defendant, the Craft Refrigerating Machine Company, is not a resident of the state of New York, but is a foreign corporation, organized and existing under the laws of the state of Connecticut, having its principal place of business-

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s.t the city of New Haven, in said state; and that plaintiff is a domestic -corporation, organized and existing under the laws of the state of New York, having its principal place of business at the city of New York. (4) That the plaintiff is about to commence an action against the defendant for the cause above stated, by issuing the summons, and serving it, with ■a copy of the complaint, hereto annexed, and no previous application for an attachment has been made herein.

The opinion of Mr. Justice LAWRENCE is as follows:

The motion to vacate the attachment in this case will be denied on the authority of the case of Bank v. Voisin, 44 Hun, 85 . In that case it was held that an attachment which was issued in an action upon an affidavit made by the plaintiff’s cashier, which stated, among other things, that “the plaintiff did, in September, 1886, advance and loan to the defendant the sum of $5,500, no part of which had been paid, and that said sum was then justly due and owing from the defendant to the plaintiff, over and \ above all counterclaims known to the plaintiff,” might be sustained on the presumption, from the tenor of the affidavit, that the officer had actual knowledge of the facts which were therein stated in positive terms. In this case the attachment was issued upon an affidavit of the treasurer and general manager of the Nason Manufacturing Company, and it is expressly stated that “the action is brought to recover damages for a breach of contract, expressed or implied, other than a contract to marry, to wit, the refusal to pay as agreed the sum of $1,078.73, as more fully appears in the complaint verified the 5th day of September, 1894. It is further alleged that no part of said sum has been paid, ana that the whole amount thereof, with interest from August 1, 1894, remains justly due and owing thereon from defendant to plaintiff, over and above all offsets and counterclaims known to plaintiff, or to any of its officers or agents.” This is a positive averment on the part of the officer making the affidavit that the sum aforesaid is due and owing, and the case of Bank v. Yoisin, above referred to, is authority for the presumption that the treasurer and general manager of the company, who makes the affidavit, had actual knowledge of the facts. There is not necessarily any conflict between the case of Bank v. Yoisin, supra, and the case of Bank v. Hall, 60 Hun, 466 , 15 N. Y. Supp. 208 , as in the latter ease it does not appear that the president had any knowledge of the financial condition or affairs of the company, nor that he was president at the time the transaction took place out of which the indebtedness arose, which the action under which the attachment issued was brought to recover. In this case the affidavit is made by the treasurer and general manager of the company, and a treasurer and general manager may be presumed to have knowledge of the financial condition of the company.

As to the second point taken by the counsel for the defendant,—that there is no allegation in the papers that the goods were reasonably worth ■any sum whatever,—I deem it sufficient to say that, as the affidavit on which •the attachment was issued distinctly avers that “the sum therein mentioned is justly due and owing from the defendant to the plaintiff, and that the ■plaintiff is entitled to recover that amount from the defendant over and above all counterclaims,” there is a sufficient allegation of indebtedness to sustain the attachment See Allen v. Patterson, 7 N. Y. 476 . Ten dollars costs to plaintiff. Ordered accordingly.

Argued before VAN BRUNT, P. J., and O’BRIEN, J.

Frederick Seymour, for appellant.

•Chas. De Hart Brower, for respondent.

The attachment was granted upon an affidavit •and complaint, both of which were verified by Samuel G-reason on September 5, 1894. The cause of action was for goods sold and .services performed during a period of about 15 months prior to and

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ending on August 22,1894. Mr. Greason swears in Ms affidavit used upon the attachment that he is the treasurer and general manager of the plaintiff. The two objections presented against the sufficiency of such affidavit and complaint are that there is no allegation that the goods were reasonably worth any sum, and that it is not stated that at the time the goods were sold and delivered or the services performed Mr. Greason had any connection with the plaintiff corporation. The first objection is disposed of in the opinion of the court below. In regard to the second, while it is true that in the affidavit the statement appears that Mr. Greason is the treasurer and general manager of the plaintiff, it is insisted that no inference from this can be drawn that he was such officer at the dates of the transactions sued upon. Whatever force there might be in this is met by the complaint, which accompanied the affidavit, and was referred to in it, and was part of the papers on which the attachment was granted, and which in its verification contains the statement that as treasurer of the plaintiff he has read the complaint, and “that the same is true of his own knowledge.” The sup- ] port thus furnished to the affidavit by the complaint in respect to both objections as to the sufficiency of the papers entirely disposes of and answers them. We think that the order appealed from was right, and should be affirmed, with $10 costs and disbursements.