Kokomo Straw Board Co. v. Inman — 24 N.Y. St. Rep. 663

Majority

p. 663

Kokomo Straw Board Company, Resp’t, v. Horace Inman and Ano., App’lts.

(Supreme Court, General Term, First Department,

Filed May 24, 1889.)

Headnote

Attachment—Sufficiency of affidavit—Code Civ. Peo., § 636.

An affidavit for an attachment on the ground that the defendants have disposed of their property with intent to defraud their creditors, made by the plaintiff’s attorney, from which it does not appear that the affiant had ever acquired any information upon the subject from the plaintiff, but merely stated his conclusion that because of his interviews with the defendants be would know as fully as the plaintiff could do, the particulars of any and all claims of the defendants, and then averred that there are no offsets or counter-claims to his knowledge or of the plaintiff, is insufficient, and upon motion an attachment issued thereon should be set aside.

Appeal from order denying motion to vacate attachment.

A. G. Smith, for app’lts; W. F. Upson, for resp’t.

The attachment in this case was issued upon the ground that the defendants had disposed of their property with intent to defraud their creditors, and the motion to vacate was made because of the alleged insufficiency of the papers upon which such attachment was issued.

It is claimed that the affidavit upon which the attachment was issued was made by the attorney of record, and

p. 664

nothing appears from the affidavit that he had either any personal knowledge as to the matter of counter-claims, nor if the allegation is ¡to be deemed to be made upon information and belief, is the information or the source thereof disclosed.

The provision of| the Code, section 636, requires that it must appear by affidavit that the plaintiff is entitled to recover a sum state’d therein over and above all counterclaims known to him, and it has been repeatedly held, that where such affidavit is made by attorney, it must appear that the attorney ¿as such knowledge as that he can give legal evidence of the facts necessary to authorize the court to act. Tim v. Smith, 93 N. Y., 91 .

It is in this case held that where an affiant does not necessarily have knowledge of, and cannot be presumed to know, the several facts attempted to be established by his affidavits, he must ¡disclose the information upon which it is founded, and the somrces thereof, so that the court may see whether or not legal evidence exists of the necessary facts. In the case at bar it does not appear that the affiant had ever acquired any information upon the subject from the plaintiff, and all that we have is his conclusion that because of his interviews with the defendants he would know as fully as tjhe plaintiff could do the particulars of any and all claims pf the defendants, and, therefore, avers that there are no offsets or counter-claims to the knowledge of deponent, or of the plaintiff.

The allegation leaves the affiant the absolute judge as to whether he has the necessary information or not, and the court must take his word for it, without being able to form any judgment upon the merits. This, it seems to us, is insufficient, and the motion to set aside the attachment s¿ould have been granted.

Order appealed from reversed, with ten dollars costs and disbursement, and ¡attachment vacated.

Daniels and Beady, JJ., concur.