Farley v. Shoemaker — 17 N.Y. St. Rep. 205

Majority

p. 205

Philip Farley, Resp’t, v. Lewis H. Shoemaker, App’lt.

(Supreme Court, General Term, Fifth Department,

Filed June 23, 1888.)

Headnote

Attachment—Affidavits containing hearsay statements unexcused ARE INSUFFICIENT TO SUPPORT.

Affidavits stating facts otherwise sufficient to warrant the granting of an attachment are not sufficient if the statements contained therein are not made of the affiant’s own knowledge but on hearsay and no reasons are given why the affidavits of the persons having knowledge of the facts are presented.

Appeal from an order of special term denying defendant’s motion to vacate an attachment.

R. R. Moss, for app’lt; Spencer & Mills, for resp’t.

The attachment was granted by a judge out of court on the ground “that the defendant being a resident of this state has departed therefrom with intent to defraud his creditors and to avoid the service of a summons, and that he has disposed of his property to defraud his creditors.”

The proofs were made by the affidavit of the plaintiff and that of one Loid.

By his own affidavit, verified December 16, 1887, the plaintiff makes proof of his cause of action on a promissory

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note for $185 which became due December 13th; that defendant is a resident of this state, and that the plaintiff last saw him at Corning on December 3d, when he stated to plaintiff that he was going to Elmira, and “said nothing of any intention of leaving the country or that he was in trouble financially.” Beyond these matters the averments of the plaintiff’s affidavit consist entirely of hearsay, viz., of statements made to him by a brother of the defendant- and matters “ascertained from Mr. Moss (a lawyer of Elmira) and other sources;” and the “substance” of statements which the plaintiff has seen in the Elmira newspapers.

The affidavit of Loid, a neigbor of the defendant, verified December 11th, shows that he drove the defendant from Corning to the Lacawana Railway station on December 3rd; when defendant told him he was going to Elmira and would be back the next Sunday to do some business with deponent, and that deponent had not seen him since, nor seen anybody who had. Loid also repeats a statement which he says “a lady ” told him defendant’s wife told her.

It is apparent that aside from the alleged statements of the brother of the defendant, and the matters “ascertained” from Mr. Moss and other sources not named, the facts disclosed by these affidavits will not support the attachment on either ground mentioned. Those facts are the existence of the cause of action accruing December 13th, the departure of defendant, from home, December 3d; his statement that he would be back the next Sunday; and, the fact that he was not known to have returned on December 11th.

To the brother of defendant the plaintiff’s affidavit attributes the statement that he had received a letter from the defendant saying that he might be gone ten years and might never come back; informing him of a power of attorney, loged with Mr. Moss of Elmira, empowering him (the brother) to take charge of defendant’s affairs and requesting him to call and see the plaintiff about the note in suit. The plaintiff did not see the letter, nor does he state that he attempted to obtain it, or a copy of it, to attach to his affidavit, nor that he learned or enquired from what place it was written. He states that the brother told him he thought the defendant had gone to San Francisco ‘ ‘because he had some time ago spoken of that city as a place he would like to live in.”

But the statements of most importance (if there were evidence to support them) continued in the plaintiff’s affidavit, are those of alleged facts ‘ ‘ ascertained from Moss and other sources,” These are to the effect that the defendant had two other notes outstanding, endorsed for his accommodation, to the amount of about $600, for the pay

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ment of which he had made no provision; and that he was otherwise indebted to the amount of several hundred dollars; that his three farms were encumbered by mortgage liens to about their full value; that since he had left, his brother, as his attorney in fact, had executed a mortgage on one of the farms, to his (the defendant’s) wife, of about $5,000, as security for $2,161 45 and against liability as security on notes; and that the defendant had also given to his brother a mortgage of $900 on his personal property, for what indebtedness or other consideration is not stated.

Which of these facts were ascertained from Mr. Moss and which from the indefinite “other sources” does not appear; except that in the next clause of the affidavit, the plaintiff states that his “information as to the before mentioned lands and personal property and the incumbrances thereon and the value thereof ” is derived from Mr. Moss

* * * and statements made by Henry Loid and other farmers living near said lands and from record copies of said mortgages. ’ ’

It is not stated when any one of the mortgages was given (except that to his wife, of which the defendant is not shown to have had any knowledge). Nor is it charged that any one of them was given for a fictitious or exaggerated consideration, or otherwise than as security for a just debt.

We do not think these affidavits fully meet the requirements of the law in respect to the proofs upon which an attachment may issue. The fault is not so much in the facts as in the proof of them.

If all the facts suggested by these affidavits were substantiated by competent proof, a case would probably be made for an adjudication that the defendant has departed from the state to avoid the service of a summons, or that he keeps himself concealed therein with like intent; certainly not for an adjudication that he had disposed of property with intent to defraud his creditors; for no disposition of property is spoken of, except by the mortgages, and no circumstance is mentioned, which suggests fraud in connection with either of them.

But all the facts upon which the first mentioned adjudcation might be based, except that the defendant had not been seen at home from the 3d to the 11th of December, are stated upon hearsay merely. The plaintiff names two_ persons from whom some of his information has been received, but ascribes one important part of it to other sources not disclosed, and he gives no reasons why the affidavits of the persons having knowledge of the facts are not presented.

The rule in the case of Steuben County Bank v. Alberger ( 78 N. Y., 252 ), and numerous other cases, seems to be conclusive against the sufficiency of the proofs in this case.

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The order of the special term must be reversed, and the motion to vacate the attachment granted,

Order reversed, and motion to vacate attachment granted, with ten dollars costs and disbursements.

All concur, except Bradley, J., not sitting.