Appleton v. Speer — 25 N.Y. St. Rep. 816

Majority

p. 816

Daniel F. Appleton, App’lt, v. James S. Speer and Peter. M. Ramsey, Resp’ts.

(New York Superior Court, General Term,

Filed June 28, 1889.)

Headnote

1. Attachment—Sufficiency of affidavit.

Where in an affidavit for attachment the facts relied upon are stated om information and belief, the source of the informrtion must he disclosed.

p. 817

2. Same—Motion to vacate—Original papers only can be relied on.

On a motion to vacate an attachment, plaintiff cannot prove by other affidavits that the facts authorizing its issuance really existed, but he must rely on the original papers upon which the attachment was granted.

Appeal from an order of special term vacating an attachment.

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

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 at. the time; nor is this true because the motion to vacate was made upon the original papers, when the plaintiff has no right to present additional papers. Bank v. Alberger, 75 N. Y., 179 .

The order should be affirmed, with ten dollars costs.

Freedman, J., concurs.

Trttax, J.

The order should be affirmed for the reasons assigned by the chief judge. See Cribben v. Schillinger, 30 Hun, 248 ; Bank v. Ward, 35 id., 395 ; Buhl v. Ball, 41 id., 61; Lee v. Association, 19 N. Y. State Rep., 879.