Crowns v. Vail — 21 N.Y. St. Rep. 208

Majority

p. 208

George H. Crowns, App’lt, v. James W. Vail et al., Resp’ts.

(Supreme Court, General Term, First Department,

Filed January 28, 1889.)

Headnote

1. Pbactice—When affidavits pbesttmed to be on pebsonab knowbEDGE.

Statements in affidavits will be presumed to have been made on personal knowledge unless stated to have been on information and belief, and unless it appears affirmatively, and by fair inference, that they could not. have been and were not on such knowledge.

p. 209

3. Same—Affidavit by attorney.

Where an affidavit in respect to a transaction of his client is made by the attorney of record in an action, r who, so far as the record shows, is only his attorney for the action, the in inference is that such attorney has not personal knowledge of the facts as to which he affirms.

3. Same—Allegation in affidavit that no counter-claims exist against assignors of plaintiff is in excess of requirements of statute-Code Civ. Pro., § 636.

An allegation in an affidavit by an assignee of a number of claims, upon an application for an attachment to the effect that no counter-claims-exist in favor of the defendants against his assignors, is in excess of the requirements of the statute.

Appeal from order vacating judgment.

W. A. Butler, for app’lt; F. O. Barlow, for resp’ts.

This motion was made by a subsequently attaching creditor to set aside an attachment which had been granted in this case against the property of the-.defendants.

The ground of the motion was' the infirmity of the affidavit upon which the attachment was granted. The affidavit was made by one of the members of the firm who. are attorneys of record for the plaintiff in this action. It was positive in its terms, alleging a cause of action; that, the defendants were non-residents of the state, and that the sum claimed was due and owing from the defendants-to the plaintiff over and above all counter-claims known to-plaintiff or deponent. The appellant seeks to support this-, affidavit, upon the ground that where the affidavit states facts positively the court will not presume or infer that the* affiant had no such positive knowledge.

An examination of the authorities cited by the learned' counsel for the appellant does not seem to bear out the-broad proposition just enunciated. Thé true rule seems to-be that statements in affidavits will be presumed to have, been made on personal knowledge, unless stated to have-been on information and belief, and unless it appears affirmatively and by fair inference that they could not have-been, and were not, on such knowledge.

It seems to us that where an affidavit in respect to a. transaction of his client is made by simply an attorney of record in an action, and who, as far as the record shows, is only his attorney for this action, the plain inference is that such attorney has not personal knowledge of the facts as to which he affirms. It is not even asserted in the affidavit that the affiant is the attorney in fact of the plaintiff, or that he had been the attorney of record of the plaintiff in any previous action, and all that can be inferred from the affidavit is that the retainer, to bring this action, was the

p. 210

first relation that had ever existed between the plaintiff ■and the affiant. Such an affidavit seems to be entirely insufficient, as the allegations must be presumed not to be within the knowledge of the attorney, and such being the case they must have been made upon information and belief, and the sources of information and the grounds of belief should have been stated.

The appellants, however, further claim that the moving party has no standing in court because of the infirmity in his own papers.

It is a well-settled rule that when a subsequently attaching creditor attacks the sufficiency of the papers upon which his prior attachment is granted, the court will examine his papers to see whether they comply with the statute which he invokes as against the prior attachment. The moving creditor sued on twenty-four several causes of action originally existing in favor of thirteen different persons, all non-residents of the state and aggregating over $7,000, all these claims having been assigned to the said creditor.

The papers upon which his attachment was granted contained an averment by the affiant Page that all of the original drafts and certificates of deposit therein described were in his possession and that he had personal knowledge of the contents thereof, and that he had also personal knowledge of the fact that no counter-claims or offsets on said causes of action existed against him in favor of defendants, and also contained the allegation that the plaintiff was entitled to recover from defendants the” sum of over $7,000, besides interest, over and above all counter-claims known to him.

This affidavit is attacked upon the ground that the affiant did not show that he had sufficient knowledge of counterclaims in favor of .the defendant in the attachment existing against the assignor of the claims.

A brief examination of the Code seems to show that this objection is not well taken. Section 636 of the Code which provides what must be shown to procure a warrant of attachment is as follows:

“ To entitle the plaintiff to such a warrant he must show by affidavit, to the satisfaction of the judge granting the -same, as follows: First, that one of the causes of action specified in the last section exists against the defendant, and if the action is to recover damages for the breach of a con"tract, the affidavit must show that the plaintiff is entitled to recover the sum stated therein, over and above all counterclaims known to him.”

The affidavit of the affiant Page ‘ swears_ to that fact absolutely, and it is of a fact in regard to which he is supposed to have some personal knowledge. He is not required to

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swear as to counterclaims existing against his assignors. The requirement is that the affidavit must show that the plaintiff is entitled to recover the sum stated therein, over and above all counterclaims known to him, and not known to him or his assignors.

The affidavit, therefore, upon which Page applied to vacate the attachment of the plaintiff, was a sufficient compliance with the Code, and .that part of the affidavit in which he attempted to show that no counterclaims existed in favor of the defendants against his assignors, was in excess of the requirements of the statute.

The court cannot impose this additional condition to the granting of an attachment, without expressing an intention upon the part of the legislature which has nowhere been intimated. In other words, it would be judicial legislation.

The order should be affirmed, with ten dollars costs and disbursements.

Daniels and Bartlett, JJ., concur.