National Bank of Commerce v. Whiteman Pulp & Paper Co. — 50 N.Y. St. Rep. 493

Majority

p. 493

The National Bank of Commerce, Pl'ff, v. The Whiteman Pulp & Paper Co. et al., Deft's.

(Supreme Court, General Term, First Department,

Filed January 13, 1893.)

Headnote

1. Attachment—Affidavit.

An affidavit of a sheriff is sufficient to give jurisdiction to issue an attachment when it sets forth that he has made diligent effort to serve defendant with a summons and complaint at a place “ where she has resided for years,” but could not for the reason that she had left the state to avoid service, and that he was informed by the bookkeeper of her son, and by her daughter, that she had left the state to avoid such service.

3. Same.

In such case, the affidavit of the sheriff is not fatally defective because he failed to ^ive therein the reasons why the affidavits of the persons giving him the information were not produced.

Appeal from an order denying a motion made on behalf of Webster B. Van Nuys, as subsequent lienor, to vacate a warrant of attachment.

Fred. W. Noyes, for app’lt,

Van Nuys; Frederic A. Ward and B. I). Silliman, for resp’t.

The appellant, claiming to be a subsequent lienor, moved to vacate the warrant of attachment granted herein against the property of the defendant, Bebeeca E. Whiteman, upon the ground that the affidavits upon which the attachment was granted were upon information and belief, and were defective because of the absence of sufficient reasons why the persons giving the information did not themselves make the affidavits. The attachment itself, as to the defendant, Bebeeca E. Whiteman, was upon the ground that, though a resident of this state, she had departed

p. 494

therefrom with intent to avoid the service of a summons. The affidavit of the president of the plaintiff discloses that the statement made by him, that Mrs. Whiteman, “having a life interest in certain real estate in the village of Dansville, N. Y., has been sent by her son to Holdrege, in the state of Nebraska, and has departed from this state with intent to avoid the service of a summons,” • is predicated upon information received from plaintiff’s attorney, with respect to information received by the latter from the sheriff of Livingston connty, to whom the summons and complaint in the action had been sent for service.

In addition, we have the affidavit of the sheriff showing that the information of the president of the plaintiff was derived from him. Upon the merits, the attachment must stand or fall upon this affidavit of the sheriff ; and the question presented is, whether it makes out a prima facie case showing that the defendant, Mrs. Whiteman, had left the state with intent to avoid the service of process. The sheriff swears that he formerly resided in Dansville, and was well acquainted with the defendant, Mrs. White-man, who was an aged lady upwards of seventy years old; that, upon- receipt of the summons and complaint, he attempted to serve the same upon her at Dansville, “ where she had resided for years, but she was not to be found, and I was unable to serve her; and, although I have used the utmost diligence, I have since been unable to find or to serve her with said summons and complaint, for the reason that she has left the county and the state to avoid the service thereof.” He further states that the defendant, Alonzo J. Whiteman, failed in business, and, with his mother, was an indorser upon a large amount of promissory notes, which have been protested, and attachments have been obtained against - his property; that he had made “ diligent inquiry at Dansville regarding the whereabouts of the defendant, Rebecca E. White-man, and ascertained that she had gone west because of the pend-ency of the suits aforesaid, and to avoid service of the summons herein.” He then proceeds to disclose the sources of his information, and shows that it was derived from a Mr. Leman, who was the clerk of the defendant, Alonzo J. Whiteman, and from Alonzo’s sister, a daughter of the defendant, Rebecca, who also lived at Dansville. From the former he ascertained that Rebecca had left and gone to Nebraska, and from the latter that her going was in order to avoid the service of process in the suits brought by hold-ers of the notes on which she was indorser with her son, Alonzo.

The criticism made by appellant is that reasons are not given why the affidavits of both Mr. Leman and Clara Whiteman were not produced. Within theprinciple, however,of the case of Scott v. Beau det, 41 St. Rep., 675 , this is not fatal to the sufficiency of the affidavit. That was a case in which the affidavit for the attachment on the ground of non-residence of the defendants was attacked becausemade upon information received from the defendant’s bookkeeper, whose affidavit was not obtained, nor reasons given for not obtaining it. It was therein held that, where the relations between the parties are such that the reasons for not obtaining the affidavit of the informant may be reasonably inferred, the explanation of the ab

p. 495

sence of such an affidavit is not necessary. We think that, having in view the actual knowledge of the sheriff with respect to the persons and their places of residence, and the information derived by him as to the attachment issued against the property of the defendants, coupled, as it was, with the information derived from the bookkeeper and sister of the defendant, Alonzo J. Whiteman, of their having left the village of Dansville, together with a state' ment of the diligent efforts made by him to serve the summons and complaint, these circumstances fully justify his conclusion, and make out a prima facie case against Mrs. Whiteman of having left her place of residence with intent to avoid service of process. This is all that was required to give the court jurisdiction, no question being raised but that all the other grounds necessary were shown to the court granting the attachment Were we to require more than is here furnished to prove that a person has departed with intent to avoid service of a summons, we should render it exceedingly difficult for plaintiffs to obtain an attachment upon this ground. The criticisms of the appellant upon the affidavits of the plaintiff, if applied to his position as a subsequent lienor, would raise a serious question as to his right or standing to make the motion. Instead, however, of disposing of it upon this ground, we have concluded that, upon the merits, the judge at special term was right in denying the motion to vacate the attachment, and that the order appealed from should be affirmed, with costs and disbursements.

Van Brunt, P. J., and Follett, J., concur.