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Talcott v. American Credit Indemnity Co.

30 N.Y.S. 1118 Court N.Y. Gen. Term Decision date 1894-11-16 English

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p. 1118
TALCOTT v. AMERICAN CREDIT INDEMNITY CO.
(Supreme Court, General Term, First Department.
November 16, 1894.)

Headnote

.Attachment—Pleading—Residence of Plaintiff.
Where neither the affidavit nor the complaint alleges the residence of plaintiff, in an action against a foreign corporation, referring to, and making part of, the complaint, the bond sued on, in which plaintiff is described as of a certain city, does not supply the omission.
Appeal from special term, New York county.
Action by James Talcott against the American Credit Indemnity •Company on a bond of indemnity. From an order denying a motion to vacate an attachment, defendant appeals. Reversed.
A copy of the bond sued on was attached to and was referred to in the complaint as part thereof. The bond is as follows:
In consideration of the written and printed application for this bond, which is hereby made part of this contract of indemnity, and the payment of three hundred and forty-eight dollars, the receipt whereof is hereby acknowledged, and in further consideration of the acceptance of all the terms and conditions hereinafter mentioned and made part hereof, the American Credit Indemnity Company grants, bargains, and sells unto James Talcott, of New York City, this, its bond of indemnity, guarantying the said James Talcott against loss to the extent of and not exceeding twelve thousand dollars, re-' suiting from insolvency of debtors over and above an annual net loss of -$12,000 (twelve thousand dollars) first to be borne by the said James Talcott
p. 1119
on total gross sales and deliveries of goods, wares, or merchandise amounting to $2,400,000 or less, said sales and deliveries to be made to firms, corporations, or individuals actively engaged in commercial or mercantile pursuits in the United States of America, between the date hereof and the 31st day of January, 1894, both days inclusive. This bond is issued and accepted upon the condition that the terms and conditions printed or written by the company upon the back of this bond are accepted by the said James Talcott as part of this contract, as fully as if they were recited at length over the signatures hereto affixed.
Argued before VAN BRUNT, P. J., and O’BRIEN and FOLLETT, JJ.
John V. Bouvier, Jr., for appellant.
T. G. Strong, for respondent.

Neither the affidavit upon which the attachment was granted, nor the complaint, contains any averments as to the residence of the plaintiff, or the place of origin of the cause of action. The recitals in the instrument referred to in the complaint cannot supply the place of an averment, as they are mere words of description, and not of allegation. The order should be reversed, with §10 costs and disbursements, and motion granted, with $10 costs.