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Biddle v. McLoughlin

39 N.Y.S. 837 Court General Term. Decision date 1896-05-23 English

Delivered by MCCARTHY, J.

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p. 837
BIDDLE v. McLOUGHLIN.
(City Court of New York,
General Term.
May 23, 1896.)

Headnote

Attachment—Affidavit Made by Third Person.
An affidavit made by a third person on behalf of plaintiff is defective where it does not show that affiant was the agent or attorney of plaintiff, authorized in any way to speak for him.
Action by William E. Biddle against Harry McLoughlin. From an order vacating an attachment on the original papers, plaintiff appeals.
Affirmed.
Argued before MCCARTHY, CORLAR, and SCHUCHMAR, JJ.
La Fetra & Glaze, for appellant.
Kemper & Cosad, for respondent.

This is an appeal from an order vacating an attachment on the original papers. The affidavit is defective in the fact that it does not allege or show that William H. Clark was the agent or attorney of the plaintiff, or authorized in any way to speak for him. We cannot assume or presume knowledge of absent facts. They are essential in order to sustain the attachment. The cases cited by the appellant are good law, but do not bear out the appellant’s contention when applied to the facts of this case.

Order affirmed, with costs. All concur.