Steele v. Raphael — 37 N.Y. St. Rep. 623

Majority

p. 623

Edward T. Steele et al., Resp’ts, v. Philip Raphael et al., App’lts.

(Supreme Court, General Term, First Department,

Filed March 13, 1891.)

Headnote

1. Attachment—Appeal.

The fact that the Code provides that on an application for an attachment the plaintiff “must show by affidavit to the satisfaction of the judge” that the jurisdictional facts exist does not make the granting of the attachment discretionary and thus not reviewable on appeal.

'3. Same—Affidavit—Non-eesidence.

Where the non-residence of the' defendants is positively stated in the affidavit, it is immaterial that their actual places of residence are stated on information and belief and that the grounds of belief and sources of information are not given.

3. Same—Teem of ceedit on sale of goods.

On a motion to vacate an attachment granted in an action for goods sold on credit, there can be no presumption indulged that such credit has not expired, but such fact, if it exists, must be affirmatively shown.

Appeal from order denying motion to vacate a warrant of attachment.

F. Bien, for app’lts; Stern & Kingsbury, for resp’ts.

We would not have considered the appeal herein worthy of much consideration had not the respondent thought it necessary to urge in support of the order appealed from taht because the Code provides that the plaintiff “ must show by

p. 624

affidavit to the satisfaction of the judge ” that the jurisdictional fact exists, and thus the sufficiency of the allegations being left to the discretion of the judge, and the determination of the sufficiency of such allegations resting in discretion, such sufficiency is not a matter properly reviewable upon appeal.

It would seem that the respondents’ counsel must have had some doubt himself as to the sufficiency of his papers or he would not have thought it necessary to raise an objection to the consideration of the merits of this appeal which has been overruled at every general term which has been held for years, past

As to the allegations in respect to non-residence the affidavit is-sufficient The allegation is positive as to the non-residence of the defendants. It is true.that their place of residence outside of the state of Hew York is stated on information and belief, and the sources of information and grounds of belief are not given, and if the jurisdiction of the court depended upon the establishment of that fact the affidavit is undoubtedly defective; but it does not matter where they reside outside of the state, the court has jurisdiction.

In respect to the point that the terms of credit do not appear to have expired, and the proofs of fraud are insufficient to support an action commenced before the credit had expired, it may be sufficient to say that there is nothing in these papers showing or tending to show that the terms of credit have not expired. We do not know that there is any presumption to be indulged m that, such credit has not expired.

If it has not, such fact would be a defense to the action and the defendants may easily avail themselves of it

The order appealed from should be affirmed, with ten dollars costs and disbursements.

Brady and Daniels, JJ., concur.