Markey v. Diamond — 49 N.Y. St. Rep. 348

Majority

p. 348

Philip Markey, App’lt, v. Charles Herbert Diamond, Resp’t.^[1]

(New York Common Pleas, General Term,

Filed November 29, 1892.)

Headnote

Abbest—Affidavit.

An affidavit for an order of arrest on the ground of false representations, which contains assertions of the falsity of the representations based upon information only, and does not state the sources of such information or the reason why better proof is not offered, is insufficient.

Appeal from order of the general term of the city court of New York,, reversing an order of the special term, and granting defendant’s motion to vacate an order of arrest upon the papers on which the same was granted.

This action was brought to recover damages for alleged false representations made by the defendant to induce plaintiff to give credit to one Maria N. Winne.

An order of arrest was granted by Mr. Justice Newburger upon the verified complaint and an affidavit of the plaintiff.

The complaint and affidavit upon which the order of arrest was granted set forth that the defendant represented to plaintiff that said “Maria N. 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 New York, free and unencumbered, worth over fifty thousand dollars. ”

The following are the only allegations of the falsity of the alleged representations:

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 defend

p. 349

ant then well knew, the said Maria N. 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 N. Winne were false and fraudulent and untrue, and were made with the preconceived 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 N. Winne, that she was residing at 226 1st 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.”

F. H. Gray, for app’lt; Mooney & Shipman, for resp’t.

The appellant has not made out a good case for the reversal of this order. It appears to us that the criticism of the general term of the city court upon this affidavit is justifiable. It contains assertions of the falsity of the representations made by the defendant; but they are evidently based upon information only, and the sources of the information are not given nor any reason why better proof is not offered. Where, in a civil action, the plaintiff desires, so to speak, to enforce his claim at the outset by arrest and imprisonment of the defendant, in other words, to have execution before obtaining judgment, it is not too much to ask him to present such evidence as alone would be receivable 'upon the trial of the action to justify an ordinary judgment for money. Such has been the practice in this court, and we are glad to see that the city court is alive to the propriety of enforcing the same rule.

We think that the decision of the city court is not only correct but quite wholesome in its tendency.

The order is affirmed, with costs.