Pride v. Indianapolis, Decatur & Western Railway Co. — 21 N.Y. St. Rep. 261

Majority

p. 261

George H. Pride, App’lt, v. Indianapolis, Decatur and Western Railway Co., Resp’t.

(Supreme Court, General Term, First Department,

Filed January 28, 1889.)

Headnote

Attachment—Source• os information must be stated in affidavit.

Where the facts alleged in an affidavit an.d complaint on attachment are made upon information and belief and the source of such information is not given, nor is it stated whence or from whom it is derived, Held, that the affidavit and complaint are insufficient.

Appeal from order vacating attachment.

E. B. Dodge, for app’lt; Nelson 8. Spencer, for resp’t.

The cause of action as alleged rests upon information and belief. If the occurrences stated took place as narrated, the defendants assumed the payment of the coupons on which the action was brought. They are not original obligations of the defendant, but became payable by it on the purchase of the Indianapolis, Decatur and Springfield Railway Company—the subsequent organization of two new corporations by the purchasing committee, to which the purchase was transferred, and the ultimate consolidation of these new companies into one, namely, the defendant in this action. If all this was done, as averred, and legally accomplished, the defendant would be liable for the interest coupons mentioned, but the allegations should be so made as to leave no doubt of the facts stated. The mere averment of them on information and belief, without explanation or proferí of any document or the expression of the sources of information and ability to get the informants as affiants, leaves a meagre case on which to seize the defendant’s property on an attachment granted on the ground that it is a foreign corporation only.

In deciding the motion which caused this appeal, the learned justice in the court below applied, as required, the well established rules. He said: “The facts upon which the alleged liability of the defendant to pay the coupons is claimed, are set up on information or belief. The source of such information is not given, nor is it stated whence or from whom it is derived. The affidavit and complaint are insufficient. Steuben Co. Bank v. Alberger, 78 N. Y., 252 ; Marine Nat. Bank v. Ward, 35 Hun, 395 ; see also Yates v. North, 44 N. Y., 271 . The appellant seeks to avoid the application of these rules by asserting that they relate to hearsay or paroi statements and not to those founded on documentary evidence presumptively in the possession of the defendant. This is begging the question. We can assume nothing on that subject.

The authority to issue an attachment rests, necessarily and justly on facts, the principal of which is the obliga

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tian to pay, and the proof of which would be indispensable before a judgment could be obtained, and an execution issued. The attachment is an inverted process exercising the prerogatives of the execution, and doing in prcesenti what otherwise could not be done, except in futuro and after due and orderly investigation. When this remedy is resorted to, and especially on the ground of non-residence, the liability of the defendant should be shown by evidence, such as would be required on the trial to make out a prima facie case. This has not been done herein, and the attachment was properly vacated.

The order made ■ below, should be affirmed, for these reasons.

Ordered accordingly, with ten dollars costs and disbursements of this appeal. '

Van Brunt, Ch. J., and Macomber, J., concur.