Finlay v. De Castroverde — 52 N.Y. St. Rep. 228

Majority

p. 228

Henry P. Finlay et al., Resp'ts, v. Placido De Castroverde, App'lt.

(Supreme Court, General Term, First Department,

Filed March 17, 1893.)

Headnote

Abbe st—Affidavit.

An affidavit to procure an order of arrest, which states that an agreement was made by which defendant became plaintiffs’ agent in Mexico for the sale of goods; that shipments of goods were made to him; that he received them and acknowledged their receipt; that he converted the same to his own use and has never accounted therefor, is insufficient, since the affiant in New York could have had no knowledge of the receipt and conversion of the goods, and his only information of the receipt being from the letter of acknowledgment, that should be produced.

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Appeal from an order at special term, denying a motion to set aside an order of arrest.

Otto Horwitz, for app’lt; J. A. Shoudy, for resp’ts.

This action was commenced by the issuance of a summons and order of' arrest accompanying the same. The summons and order of arrest being served, this motion was made upon the papers upon which the order was granted to vacate the same, and from the order denying the motion this appeal is taken. The order was granted upon the affidavit of one of the plaintiffs," who swore that the plaintiffs were merchants residing and doing business in the city of Mew York, and that the defendant, in January, 2891, was a merchant doing business in the city of Mexico; but that he was informed and believed that the defendant had left the city of Mexico, and was at the time of making the affidavit in the city of Mew York; that in said month of January the plaintiffs and defendant entered into an agreement in writing, sig led by them, which was in the plaintiffs’ possession, and ready to be produced, by which it was provided that the defendant should become the sole agent in the republic of Mexico for the plaintiffs for the sale of certain merchandise, and that the plaintiffs, upon receipt of orders from the defendant, should ship merchandise, which the defendant was to receive and account for at certain prices therein named, and to render separate accounts of sales for every shipment, and to remit to them the amount due for the merchandise as soon as sold, whether the purchase price had been received for said merchandise or not, the defendant taking the risk of all sales; and that, in pursuance of this agreement, dur ing the year 1891, and the months of April, May and August, the plaintiff made four shipments, amounting to the sum of $3,380.55, including a sum advanced by the plaintiffs for freight upon the merchandise; that the defendant was entitled toa credit of $152.73 for the balance due him on account of previous shipments, leaving $3,227.82 due the plaintiffs, no part of which had been paid.

The affidavit further stated that the defendant was to receive in consideration of his services one-half of the net profits which might be realized upon the merchandise over and above the prices named after deducting freight duties and other actual charges ; that the defendant received all of said merchandise prior to October 1, 1891, and acknowledged the receipt thereof by letters addressed to the plaintiffs, and which they received in due course, and then had in their possession. The affiant further stated that the defendant never made any remittances or payments on account of the merchandise, and was entitled to no credit- except as above mentioned; and that by letter dated October 7, 1891, the defendant wrote to the plaintiffs that he had given up his business, and had transferred this merchandise to the firm of J. M. Gaston & Co., of that city. And then follows tire legal conclusion that the defendant had no right or authority to make such transfer, and the allegation that plaintiffs had since received a letter from said firm of Gaston & Co., to whom the defendant said he had transferred said goods, in which they say that the defendant, before his de

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parture from Mexico, and prior to his transfer to them, hypothecated all of said merchandise to the Bank of London and Mexico as security for a loan to him of $5,000, and that said firm could not account to plaintiffs for the proceeds of any of said merchandise until said loans were paid; that defendant had never rendered any account. in respect to said merchandise except the statement that he had turned the same over to Gaston & Go.; that he had been several times to the city of New York, but had never called upon plaintiffs, or reported to them in- any way, and is now in the city of New York, but is endeavoring to conceal his presence in said city from the plaintiffs; and that he believed the information received from Gaston & Co: to be true, and that the merchandise was received by the defendant in a fiduciary capacity, and he had wrongfully converted the same, to the plaintiffs’ damage to the amount of $5,000.

It is urged upon the part of the defendant that the motion to vacate the order of arrest should have been granted, because many of the material allegations of the affidavit upon which the order of arrest was founded were made upon information and belief, and derived from documents which were not produced, and that the allegations in the affidavit are simply conclusions derived from an inspection of these documents, which it is the province of the court to draw, and not of the affiant. Upon the other hand, it is claimed by the respondents that the affidavit is not upon information and belief, nearly all the essential facts being within the knowlege of the affiant, and stated positively.

It is asserted that the making of the agreement, the shipping of the merchandise, the receipt thereof by the defendant, and the acknowledgment of such receipt, were all facts within the knowledge of the plaintiff who made the affidavit. How the affiant, at New York, had personal knowledge of the receipt of these goods in Mexico, it is somewhat difficult to imagine. It may be that he believes they were received because he believes himself to have been informed by a letter of the defendant that he had received them, but he clearly had no personal knowledge of the fact. The only information that he claims to have had on that point is the letter of the defendant acknowledging its receipt. How, it is clear that if he was testifying upon the stand as a witness with respect to the receipt of these goods, he could not be heard to open his mouth without the production of the letter, or accounting for its loss. Hence, when we consider the difference between the allegations of a complaint and an affidavit, the former being allegations of fact, to be supported by evidence to be subsequently given, if not admitted, and the other furnishing the evidence to the court from which it can draw its own conclusions, it is apparent that allegations of this character, without the production of the proof, have no probative force whatever. It is undoubtedly true that plaintiffs had personal knowledge that no account had been rendered, but as to the transfer and conversion of the property the whole allegation is based uoon correspondence, not a particle of which is produced. How, whether this correspondence bears out the construction which is placed upon it by the plaintiffs is for

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the court to determine, and not the plaintiffs. These facts have been so frequently pointed out by this court that it seems hardly ■necessary to discuss them further. In the case of Tim v. Smith, 93 N. Y., 91 , it was held that the affidavit of an attorney as to facts necessary to establish the validity of an attachment was wholly insufficient; the court saying: “It is difficult to see how an attorney can acquire such knowledge of the several facts required to be proven as entitles him to give legal evidence of their existence,” the court thus expressly recognizing that an affidavit, unless it contains legal evidence of the existence of the facts to be established, is a nullity. Applying this test to the affidavit in ■question, it is apparent that it does not at all comply with the rule. We think that the order was wrong, and should be reversed, with ten dollars costs and disbursements, and the motion granted.

O’Brien and Follett, JJ., concur.