Bornstein v. Harding — 40 N.Y. St. Rep. 868

Majority

p. 868

Joseph A. Bornstein, Resp’t, v. Robert L. Harding, App’lt.

(City Court of New York, General Term,

Filed October 22, 1891.)

Headnote

Aebest—Affidavit.

An affidavit made by the assignee of a claim for goods sold, stating that defendant by means of false representations purchased said goods .from theaffiant’s assignor, and that the assignor sold said goods on the faith of such representations, is insufficient to -warrant the granting of an order of arrest, as it is apparent that the facts stated were not within the personal, knowledge of the affiant.

(Ehrlich, Oh. J., dissents.)

Appeal from order denying motion to vacate arrest.

Carpenter & Mosher, for app’lt; Thomas Nolan, for resp’t.

This isan appeal from an order denying a, motion to vacate an order of arrest herein.

It appears that the order of arrest was granted upon an affidavit-made by the plaintiff, from which it appears that the defendant, a resident of Portland, Maine, on or about the 11th day of March,. 1891, purchased from one Julius M. Cohen, plaintiff’s assignor, a. quantity of segars, and that the defendant represented himself as-being perfectly responsible, and that on the faith of these representations said Cohen sold the segars to the defendant, which said, representations were false and fraudulently made.

The motion to vacate was made on the papers upon which the order of arrest was granted.

The affidavit of plaintiff did not warrant granting the order of arrest

Dissent

p. 869

It is apparent from the affidavit that the facts stated were not within the personal knowledge of the plaintiff, and yet he positively alleges conversations between defendant and plaintiff’s assignor, and the effect of such conversation on said assignor’s mind.

The order appealed from must be reversed, and the motion to vacate order of arrest is granted, with costs.

Van Wyck, J., concurs.

(dissenting).—The plaintiff swears that on March 11,1891, the defendant purchased of the plaintiff’s assignor a bill of' cigars worth $67.60, stating that he was perfectly responsible, and doing a large business, and that, within a few days thereafter, the defendant failed, and made a general assignment, claiming to be insolvent. These facts were not denied, for the motion to vacate the order of arrest was made on the original papers. Unxexplained, the facts warranted the order, and the motion to vacate it was properly denied. The point, that the facts were not within the plaintiff’s knowledge, is without force. He has sworn to them, and they are inferentially within his knowledge. He may have been present at the time.

Upon the record, the order appealed from must be affirmed, with costs.

Order reversed, and motion granted, with costs.