Altworth v. Flynn — 58 N.Y.S. 606

Majority

p. 606

ALTWORTH v. FLYNN.

(City Court of New York,

General Term.

May 26, 1899.)

Headnote

Attachment—Affidavit—Sufficiency.

Affidavits for attachment state a cause of action, where plaintiff’s affidavit states that defendant is indebted to him in a certain sum, and refers to and makes the complaint a part of the affidavit, such complaint, based on information and belief, stating a cause of action, and the material allegations are sworn to by one of plaintiff’s assignors in an affidavit attached to the papers on which the attachment was granted.

Appeal from special term.

Attachment by William F. Altworth against Thomas Flynn. From an order denying his motion to vacate the attachment, an execution creditor of defendant appeals.

Affirmed.

Argued before MCCARTHY, P. J., and CORLAN and O’DWYER, JJ.

Eugene G. Kremer, for appellant.

Abraham A. Joseph, for respondent.

The affidavits upon which the attachment was granted sufficiently state a cause of action. The affidavit of the plaintiff shows that the defendant is indebted to the plaintiff in the sum of $311.66 over and above all payments, counterclaims, and set-offs, and plaintiff begs leave to refer to his complaint, which is made a part of affidavit; and these, with the affidavit of Henry D. Schutte, all read together, spell out a complete cause of action. It is sufficient if the proof has a legal tendency to make out, in all its parts, a case for the issuing of an attachment. The complaint states facts sufficient to constitute a cause of action, and, although based upon information and belief, the material allegations are sworn to by one of

p. 607

plaintiff’s assignors in this action, in an affidavit attached to the papers upon which the attachment was granted.

The order appealed irom should be affirmed, with costs. All concur.