Claflin v. Silberg — 29 N.Y. St. Rep. 362

Majority

p. 362

John Claflin et al., Resp’ts, v. Joseph Silberg, App’lt.

(Supreme Court, General Term, First Department,

Filed January 24, 1890.)

Headnote

Attachment—Affidavit. .

An attachment cannot be obtained upon the affidavit of an attorney whose statements are made on information and belief, the sources of which are not stated, or upon an affidavit of the party alleging fraud but giving no facts to justify such statement.

Appeal from order denying motion to vacate attachment.

F. Bien, for app’lt; Abram Fling, for resp’ts.

The allegation that the defendant disposed of his property with intent to defraud his creditors rests wholly upon the affidavit of the attorney, who had no personal knowledge of the facts. His statements depended upon information acquired by him, the sources of which have not been disclosed, and the practice is settled that an attachment cannot be obtained upon such an affidavit.

The affidavit made by one of the plaintiffs does not strengthen this part of the case, for while he states that the defendant assigned and disposed of and secreted his property with intent to cheat and defraud his creditors, no facts are disclosed which would justify this statement.

The order should be reversed, with ten dollars costs and disbursements, and the attachment vacated.

Van Brunt, P. J., Brady and Daniels, JJ., concur.