Appleton v. Speer — 24 N.Y. St. Rep. 962

Majority

p. 962

Daniel F. Appleton, App’lt, v. James S. Speer et al., Resp’ts.

(New York Superior Court,

General Term,

Filed June 29, 1889.)

Headnote

Attachment—Affidavit—Sufficiency. <

Where the papers upon which an attachment was issued disclose that some facts, the existence of which it was necessary to prove, were sworn to on information and belief, and the source of the information not disclosed, the order should be vacated; nor can the defect be supplied by other affidavits produced upon the motion to vacate.

Appeal from an order vacating an attachment.

Abbett & Fuller and Henry Schmitt, for app’lt; Morse & Haynes, for resp’ts.

The order should be affirmed for the reasons assigned by the chief judges. See Cribben v. Schillinger

p. 963

( 30 Hun, 248 ), Marine Nat. Bk. v. Ward (35 id., 395 ), Buhl v. Ball (41 id., 61), Lee v. Co-operative, etc. (19 N. Y. State Rep., 879).

From the original papers, taken together, on which the order of attachment was issued, it appeared that some facts, the existence of which it was necessary to prove, were sworn to upon information and belief, and the source of the information not disclosed. For this reason the court below was correct in granting the motion to vacate the order. The original defect could not be remedied by proving by other affidavits produced upon the motion to vacate, that the facts referred to really existed; and the more is this true, because the motion to vacate was made upon the original papers, when the plaintiff has no right to present additional papers. 75 N. Y., 179 .

The order should be affirmed, with ten dollars costs.

Freedman, J., concurs.