Butterworth v. Boutilier — 50 N.Y. St. Rep. 828

Majority

p. 828

Edwin Butterworth et al., Resp'ts, v. Enos Boutilier et al., App'lts.

(Supreme Court, General Term, Fourth Department,

Filed February 23, 1893.)

Headnote

1. Attachment—Affidavits.

An attachment will not be set aside upon the ground that some of the affidavits used to obtain it have a “want of a title,” where the affidavits “intelligibly refer to the action.”

3. Same.

An affidavit for an attachment made by an agent is sufficient where it appears therein that he had knowledge upon the subject, as well as information bearing upon the essential points contained in the affidavits.

On the 16th of September, 1892, an attachment was issued by a justice of this court, and at the special term held in Onondaga county, October 1, 1892, a motion, on the papers used to obtain the attachment only, was made to set the same aside, which motion was denied. Defendants appeal from the order of the special term held in Onondaga county.

Smith M. Lindsley, for app’lts;

Jones & Townsend, for resp’ts.

notwithstanding some of the affidavits used to obtain the attachment upon inspection are found to have a “ want of a title,” we think no error was committed in refusing to set aside the attachment on that ground, as the affidavits “ intelligibly referred to the action or special proceeding.”' Code Civil Procedure, § 728.

(2) In the affidavit of Demorest he says, “that he is the agent of the plaintiffsand that “he has charge of the business of these plaintiffs at the city of Hew York, and made the sale of the goods to these defendants for plaintiffs as above set forth, and has personal knowledge of the transfer to plaintiffs of the notes above mentioned, and has in his possession the said notes and the written assignment thereof. * * * And that the amount of the plaintiffs’ claim in said action is $4,409.64, and interest thereon from the day of , 1892, over and above all counterclaims known to deponent or to plaintiffs,” and then the affidavit proceeds to set out the grounds of the causes of action, with allegations that correspond to the averments in the complaint as to the plaintiffs’ causes of action.

In Crowns v. Vail, 51 Hun, 207 ; 21 St. Rep., 208 , in speaking of an affiant who had made an affidavit to obtain an attachment, Judge Yan Brunt says, “He is not required to swear as to counterclaims existing against his assignors; the requirement is that the affidavit must show that the plaintiff is entitled to recover the sum stated therein over and above all counterclaims known to him, and not known to him or his assignors.”

In Cribben v. Schillinger, 30 Hun, 248 , the attachment was vacated because the affidavit “ did not show either that the at

p. 829

torney had any knowledge, or the sources of his knowledge, that the amount named was due, over and above all counterclaims known to the plaintiffs,” and in the course of the opinion in that •case Smith, P. J., said; “ As the attorney had no knowledge or information on that point, there was no proof whatever on the subject and that lack of proof was a jurisdictional defect. Ruppert v. Haug, 87 N. Y., 141 . We do not say that a sufficient affidavit cannot be made by an agent in any case, but when made by him there should be proof that he has knowledge, or at least satisfactory information as to the essential facts stated by him, and where he acts upon information only, the sources of his information should be stated and the reasons why the affidavit is not made by someone having knowledge of the fact.” We think the case before us is distinguishable from that one and that it falls within the language just quoted; for in the affidavits before us it does appear that the agent had knowledge upon the subject, as well as information bearing upon the essential points contained in the affidavits. And in Gribbon v. Back, 35 Hun, 541 , it was held that << The affidavit which § 636 of the Code of Civil Procedure requires the plaintiff to furnish on applying for an attachment need not be made by the plaintiff himself, but may be made by an agent.” That was a case where the agent personally sold and delivered the goods. Globe Yarn Mills v. Bilbrough, 49 St. Rep., 702 .

(3) Taking the affidavits altogether undenied, we think they furnished a prima facie case calling upon the officer to exercise his judgment when the attachment was applied for. Conklin v. Dutcher, 5 How. Prac., 386; Van Alstyne v. Erwine, 11 N. Y., 340 ; Buell v. Van Camp, 119 id., 160; 28 St. Rep., 947 ; James v. Wilkinson, 39 Hun, 399 .

Order affirmed, with ten dollars costs and disbursements.

Martikt, J., concurs; Merwih, J., not sitting.