p. 417Frederick M. Hill, Resp’t, v. The Knickerbocker Electric Light & Power Co., App’lt.(Supreme Court, General Term, First Department,Headnote
1. Attachment—Affidavit.An affidavit for an attachment based in part on an assigned claim stated positively the facts in relation to said claim. It also appeared that plaintiff was in the employ of defendant during almost the whole time the assigned claim accrued, and left it a few days before his assignor. Meld, that as it could be assumed that he obtained knowledge of the facts in that manner, his positive statements were sufficient to support an attachment.
Where the attachment is not a part of the papers on appeal it may be assumed, to sustain it, that the complaint was before the justice when he issued the attachment; in such case an omission to state in the affidavit to whom the assignment was made is cured by the statement of the fact in the complaint
Appeal from an order denying a motion to vacate an attach.ment
Abraham Gruber, for app’lt; John A. Amundson, for resp’t.
The attachment has been issued for two different demands, one owing to the plaintiff directly, and the other acquired by assignment They have been supported by the plaintiff’s affidavit, and sufficiently so, too, as to the demand owing to him personally. But that part of the affidavit devoted to the assigned demand is objected to as insufficient, for the reason that it has not been stated that the facts mentioned in it were, or could have been known to him. They are generally stated as facts within the plaintiff’s knowledge, and in no sense depending on his information.
But in support of the conclusion that they were within his knowledge is the circumstance that the plaintiff was in the employment of the defendant during the time when the assigned demand mainly accrued, he having left the employment on the twenty-ninth day of November, 1890, and the assignor on the
p. 418sixth, of the following month of December. The services in each instance are stated to have commenced on the same day. And while they were rendered in different pursuits, still there is reason for concluding that the plaintiff had in this manner obtained that, knowledge concerning the rendition of the services of the assignor as enabled him to make the statements concerning it which are contained in his affidavit And when that may be assumed to be-, the state of the facts, the positive affidavit of the assignee may be reasonably accepted and acted upon as the foundation for an attachment
Am. Exchange Bk. v.
Voisin, 44 Hun, 85 ; 7 N. Y. State Rep., 381, and
Crowns v.
Vail, 51 Hun, 204 ; 21 N. Y. State Rep., 209, support this ruling.
The affidavit is defective in omitting to state to whom the assignment was made. But the attachment forms no part of the papers on the appeal, and it cannot, therefore, be said that it was issued alone upon the affidavit The complaint was sworn to on the same day and may be assumed to have been also before the justice at the time when he subscribed the warrant of attachment. And that avers the assignment to have been to the plaintiff, which supplies this omission in the affidavit itself. The attachment has in this manner been sufficiently supported and the order should be affirmed, with ten dollars costs and the disbursements on the appeal.
Van Brunt, P. J., concurs.