Barstow Stove Co. v. Darling — 30 N.Y.S. 1033

Majority

p. 1033

BARSTOW STOVE CO. v. DARLING.

(Supreme Court, General Term, First Department.

November 16, 1894.)

Headnote

Attachment—Affidavit of Officer of Corporation.

An affidavit by an officer of plaintiff corporation, stating that affiant “knows personally” that there are no counterclaims in favor of defendant, is sufficient though it does not allege that affiant was an officer when the debt sued for was incurred.

Appeal from special term, New York county.

Action by Barstow Stove Company against Albert M. Darling, as administrator, etc. From an order vacating a warrant of attachment, plaintiff appeals. Reversed.

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

Royal F. Harvey, being duly sworn, says: First. That he is the manager and agent of the Barstow Stove Company, the plaintiff in the above-entitled action, in the state of New York, and has the general charge and management of the business of said plaintiff carried on within said state. That said plaintiff is a foreign corporation, created by and duly organized under and pursuant to the laws of the state of Rhode Island, and that said plaintiff now and for many years past has had a place for the regular transaction of business in the city of New York. Second. That the above-named defendant, Sadie Wilmerding, is justly indebted to said plaintiff in the sum of two hundred and seventy-four dollars and sixteen cents, with interest thereon from the 5th day of June, in the year 1891, arising from the following facts, to wit: That heretofore, and in and during the month of December in the year 1890, the said plaintiff sold and delivered to the said ■defendant certain goods, wares, and merchandise, and performed certain work, labor, and services in and about the same, at agreed prices amounting in the aggregate to the sum of four hundred and thirteen dollars. That

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said sum bore interest from December 25, 1890. That on the 5th day of June, 1891, the said principal sum, with interest thereon, amounted to four hundred and twenty-four dollars and sixteen cents. That on or about said day the said defendant paid on account thereof the sum of one hundred and fifty dollars, leaving a balance of two hundred and seventy-four dollars and sixteen cents unpaid, due, and owing said plaintiff, with interest thereon from June 5, 1891. That plaintiff is justly entitled to recover of the said defendant the said sum of two hundred and seventy-four dollars and sixteen cents, with interest thereon from June 5, 1891, over and above all set-offs and counterclaims; and deponent knows personally that there are no set-offs or counterclaims existing in favor of the said defendant to the said indebtedness. Third. That the said defendant, Sadie Wilmerding, is not a resident of the state of New- York, but resides at Orange, in the state of New Jersey, and that the cause of action herein set forth arose within the state of New York. Fourth. That the above-entitled action has been commenced by the said plaintiff against the said defendant to recover for the said cause of action, and the accompanying summons in said action has been issued and served on the said defendant, who has not appeared or answered therein. Fifth. That no previous application for an attachment of property against the said defendant, Sadie Wilmerding, has been made in this action.

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

George H. Pettit, for appellant.

Timothy M. Griffing, for respondent.

The decision of this court in Bank v. Hall, 60 Hun, 466 , 15 N. Y. Supp. 208 , does not support the order appealed from, which vacates a warrant of attachment. It was not held in that case that an affidavit by an officer of a corporation is necessarily defective because it omits to allege that the affiánt was such officer at the time the indebtedness alleged was incurred. The defects in the affidavit in that case were pointed out in the prevailing opinion as follows:

“The affiant nowhere states that he has any knowledge of the financial affairs of the appellant corporation, or that he had any connection with its active business, or that he ever saw its books or accounts, or that he had any such relation to the business of the corporation as would justify the inference of knowledge as to its pecuniary affairs.” “We do not know even,, from the papers, as to whether he was connected with the company at the-time of the transactions alleged in the affidavit”

In this case it not only appears affirmatively that the affiant had' knowledge of the financial affairs of the corporation in this- state, where the cause of action arose, but the inference is justified that he was such officer at the time the defendant became indebted to-the plaintiff. The affidavit asserts that deponent “is the manager and agent of the Barstow Stove Company, the plaintiff in the above-entitled action, in the state of New York, and has the general charge and management of the business of said plaintiff carried on within said state.” And after stating positively how the indebtedness arose, and when, the amount of the original indebtedness, and the sum remaining due and unpaid at the time of the cornmencement of the action, the affidavit continues:

“That plaintiff is justly entitled to recover of the said defendant the said: sum of two hundred and seventy-four dollars and sixteen cents, with interest

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thereon from June 16, 1891, over and above all set-offs and’ counterclaims;' and deponent knows personally that there are no set-offs or counterclaims-existing in favor of the said defendant to the said indebtedness.”

But if the inference is not required that he was the agent and manager of the corporation at the time of the transactions described, still the positive assertion of personal knowledge of all the facts essential to the statement of a cause of action, considered with the statement of his official connection with'the plaintiff, was sufficient to support the warrant of attachment issued. Bank v. Johnson (Sup.) 16 N. Y. Supp. 71 . The order should be reversed, with $10 costs and printing disbursements, and the motion denied,, with $10 costs. All concur.