National Broadway Bank v. Barker — 38 N.Y. St. Rep. 920

Majority

p. 920

The National Broadway Bank in the City of New York v. Stephen T. Barker.^[1]

(Court of Appeals,

Filed June 23, 1891.)

Headnote

Attachment—Affidavit on information and belief.

The supreme court commits no error in refusing to grant an attachment on the ground that the affidavit on which it was granted was insufficient because the affiant did not have personal knowledge of the facts stated therein.

Appeal from judgment of supreme court, general term, first department, affirming order denying motion to vacate attachment in this action.

P. Q. Eckerson, for app’lt; Wm. F. MacRae, for resp’t.

The plaintiff in this action obtained an attachment against the property.of the defendant, and the Mattson Rubber Company, a subsequent attaching creditor, made a motion to set the prior attachment aside; and that motion was denied at the special term. The rubber company then appealed to the general term, and there the order of the special term was affirmed.

It appears from the opinion of Judge Daniels at the general term that the order of the special term was affirmed on the ground that the moving papers did not show that the rubber company had acquired any lien by attachment upon the same property seized by the attachment issued in this action. The affidavit upon which the motion was based which was presented' to the special term for the purpose of showing that the rubber company had attached the same property seized under the prior attachment, was held to be insufficient, because the affiant did not have personal knowledge of the' facts stated therein. Without holding

p. 921

that the supreme court could not in its discretion have accepted the affidavit as sufficient, it did not commit any legal error in refusing to accept it, and in denying the motion upon that ground.

The order should be affirmed, with costs.

All concur, except Finch, J„, absent.