Hitner v. Boutilier — 51 N.Y. St. Rep. 518

Majority

p. 518

Joseph G. Hitner, Resp’t, v. Enos Boutilier et al., App’lts.

(Supreme Court, General Term, Fourth Department,

Filed February 23, 1893.)

Headnote

Attachment — Affidavit .

The material averments necessary to entitle a plaintiff to a warrant of attachment must be stated positively, and not upon information and belief, unless the source of information and grounds of belief are stated.

p. 519

Appeal from order denying motion to vacate attachment.

S. M. Lindsley, for app’lts; Jones & Townsend, for resp’t.

This is an appeal from an order denying defendants’ motion to vacate an attachment. The motion was made on the papers upon which the attachment was granted.

In the affidavits for the attachment, the only statement of the facts constituting plaintiff’s alleged claim or cause of action was as follows : “ That the grounds for said claim and causes of action are fully set forth in the complaint in this action, which is hereto annexed, and which has been duly verified by this deponent, September 20, 1892, and deponent here refers to the said complaint, and the same and the whole of it is made a part of this ■affidavit, with the same force and effect as though it was here set forth and repeated in full.” The allegations .in the complaint were all made upon information and belief, with no statement in the complaint or affidavits as to the sources of plaintiff’s knowledge or grounds of his belief.

The appellants contend that the attachment was improperly granted, because none of the affidavits upon which the warrant was issued disclosed the existence of any cause of action against the defendants.

It seems to be settled that to entitle a plaintiff to a warrant of attachment, he must, by affidavit, show sufficient facts to establish a cause of action against the defendant, and specify the grounds of his claim. Code Civ. Pro., § 636; Jacobs v. Hogan, 85 N. Y., 243 , 244; Manton v. Poole, 67 Barb., 330 ; Walts v. Nichols, 32 Hun, 276 ; Belden v. Wilcox, 47 Hun, 331 ; 14 St. Rep., 374 ; Pomeroy v. Ricketts, 27 Hun, 243 . In Jacobs v. Hogan, supra, Rapallo, J., in delivering the opinion of the court, said: “ The affidavit wholly omitted to show that the plaintiff had any cause of action against the defendants upon which an attachment could be founded or to specify the grounds of his claim. These were fatal jurisdictional defects, which entitled the appellants to have it set aside.”

It is obvious that in this case sufficient facts were not shown to entitle the plaintiff to an attachment, unless they appear in the complaint. But the facts in the complaint are stated solely upon information and belief, and the rule seems to be that the material averments necessary to entitle a plaintiff to a warrant of attachment must be stated positively, and not upon information and belief, unless the sources of information and grounds of belief are stated. Steuben Co. Bank v. Alberger, 78 N. Y., 252 ; Hill v. Bond, 22 How., 272 ; Ackroyd v. Ackroyd, 20 id., 93; Ex parte Haynes, 18 Wend., 611 ; Pride v. I. D. & W. Ry. Co., 21 St. Rep., 261 ; Buell v. Van Camp, 119 N. Y., 160 ; 28 St. Rep., 947 . In Buell v. Van Camp, supra, Earl, J., said: “All that is required is that the information furnished by the affidavit shall be such that a person of reasonable prudence would be willing to accept and act upon it. The mere averment, however, of a fact upon information and belief without more is not sufficient; but the sources of the information and the grounds of the belief must be stated,

p. 520

so that the judicial officer to whom the affidavit is presented may judge whether the information and belief have a proper basis to rest on.” In 1 Rurnsey's Prac., 518, it is said : “In this case, as in others, a verified pleading is regarded as an affidavit. (Code Civ. Pro., § 3343, subd. 11.) When so used, however, it should comply with the requirements of other affidavits as to the manner of stating the facts.”

In the case before us, there was no verification by affidavit of the facts stated in the complaint. Such facts having been stated on information and belief only, without any verified statement showing the sources of information or grounds of belief, we think the affidavits were not sufficient to justify the issuing of the attachment.

The case of Haebler v. Bernharth ( 115 N. Y., 459 ; 26 St. Rep., 230 ), is not in conflict with this conclusion, as an examination of the appeal book in that case discloses that the allegations in the complaint were positively stated.

Moreover, the sufficiency of the plaintiff’s affidavits to show that the defendants had removed or were about to remove their property from the state with intent to defraud their creditors, or, had assigned, disposed of or secreted, or were then assigning, disposing of or secreting their property with like intent, is, to say the least, doubtful. But, as the order must be reversed on the grounds already stated, it is unnecessary to examine this question.

It follows, therefore, that the order appealed from should be reversed, and the attachment vacated.

Order reversed, with ten dollars costs and disbursements, and motion granted. -

Hardin, P. J., concurs; Merwin, J., not sitting.