Market v. Diamond

This is an appeal from an order denying a motion to vacate an order of arrest.

The motion was on the original papers, which were a verified complaint and affidavit.

The action was brought to recover damages for alleged false representations.

The complaint and affidavit upon which the order of arrest was granted set forth that the defendant represented to plaintiff that said “ Maria K. Winne was solvent and in good credit, and worth the sum of one hundred thousand dollars over all her debts and liabilities,’’ “and that, she owned real estate in the city of Kew York, free and unincumbered, worth over fifty thousand dollars.”

The complaint sets forth:

“That the said representations were false, in that said Maria N.

Winne was not then and there solvent and in good credit, and worth one hundred thousand dollars, or fifty thousand dollars, over and above all her liabilities; but on the contrary, and as the defendant then well knew, the said Maria R. Winne was then and there insolvent, and not in good credit, nor safe to be trusted.”

The affidavit sets forth:

“That said representations as to the solvency of said Maria R. Winne were false and fraudulent and untrue, and were made with the pre-conceived design and intent of defrauding this plaintiff, and as a matter of fact said Winne was insolvent, and was a woman without means, and deponent has since ascertained, from persons who know said Maria R. Winne, that she was residing at 226 First street, Albany, on the top floor of a tenement, at a rental of $9 per month, and that she had been supported in part for past years by the Ladies’ Aid Society of St. Paul’s Church in the city of Albany.”

The foregoing are the only allegations of the falsity of the alleged representations.

It is very clear from, an inspection of the affidavit that down to the words “ deponent has since ascertained from persons,” all the allegations necessary to sustain the order of arrest are mere conclusions.

The plaintiff at the time of the making of the alleged representations must have believed them and relied on them, else one of. the essentials would be missing.}

He now alleges that said Maria R. Winne was not solvent, nor in good credit, nor worth a certain sum over and above all her liabilities, but, on the contrary, was insolvent and not in good credit, nor safe to be trusted.

When did he ascertain this, and how, and from whom, and what were the facts? Otherwise these allegations are mere conclusions.

To authorize an order of arrest, facts and not conclusions must, be stated. Meriden Malleable Iron Co. v. Baudman, 2 W. Dig., 591; Dreyfus v. Otis, 54 How. Pr., 405 .

If the conclusions of the affidavit are to be drawn from communications, whether written or verbal, the communications must be set forth in order that the court may see that the deductions of the affiant are well founded.

Any other rule would make the affiant the sole judge as to whether the evidence which he had in his possession was sufficient to entitle him to the relief sought.

In the case at bar the affiant swears to nothing but conclusions. Such allegations may be good in a complaint, but are entirely useless in an affidavit, whose office it is to place before the court the evidence from which it may draw its conclusions. Moore v. Becker, 13 St. Rep., 567 , 568; Hecht v. Levy, 20 Hun, 54 ; Perry v. Smith, 9 St. Rep., 728 . See opinion of Ruger, C. J., in Morris v. Talcott, 96 N. Y., 107 , 108.

At the close of the affidavit the affiant says “ And deponent has since ascertained from persons who know said Maria R. Winne, that she was residing at 226 First Street, Albany, on the top'floor of a tenement, at a rental of nine dollars per month, and that she

The affidavit being defective in the matters thus pointed out, the order of the special term should be reversed and the motion vacating the order of arrest granted, with costs.

McG-own, J., concurs.