Mann v. Carter — 54 N.Y. St. Rep. 212

Majority

p. 212

Florence N. Mann, Resp’t, v. William D. Carter, Impl’d, App’lt.

(Supreme Court, General Term, Second Department,

Filed July 28, 1893.)

Headnote

Attachment—Affidavit of plaintiff’s attorney.

An affidavit made by the attorney ior plaintiff, who was absent from the state, in an action upon a promissory note in the attorney’s possession, which shows that he was informed by plaintiff that the amount of the note was due over and above all counterclaims known to her, and that defendants had admitted to him the making and non-payment of the note, is sufficient to show that the plaintiff was entitled to recover the amount of the note, and that there were no counterclaims against it, and to support an attachment granted thereon.

Appeal from order denying motion to vacate an attachment.

Wm. O. Campbell, for app’lt; Lowrey, Stone & Auerbach, for resp’t.

This is an appeal from an order denying a motion to vacate ■ an attachment against the property of the defendant.

The motion was made upon the papers on which the attachment was issued, and is based upon the insufficiency of the affidavit upon which the writ was granted.

That affidavit was made by the attorney in fact and agent of the plaintiS. The action is upon the joint promissory note of the defendants for fifteen thousand dollars, which is in the possession of the agent.

He has held conversations with the defendants in which they have admitted to him the making and delivery of the note, and the non-payment thereof.

Those facts are stated in the affidavit, and they are-the grounds upon which the statements therein upon information and belief are made.

The affidavit was made by the agent because the plaintiS was absent from the state.

He states that the whole amount of the note is due with interest from the second day of January, 1892, over and above all counterclaims known to the plaintiS, as he is informed by her and verily believes.

That is a sufficient statement of the source of his information.

The insufficiency of the affidavit is claimed to result from its failure to show that the plaintiS is entitled to recover the sum of money claimed over and above all counterclaims known to her.

We must, therefore, determine whether the affidavit in question makes such a showing.

The affiant was the agent of the plaintiS, and had important

p. 213

knowledge and information respecting the claim upon which this, action is founded.

The note was in his possession, and the plaintiff had informed him that there was no counterclaim.

He had conversed with the defendants respecting the note, and they had admitted to him the making and delivery of the note and its non-payment.

All those facts were submitted to the judge who granted the attachment, and they were sufficient to show that the plaintiff was entitled to recover the amount due upon the note, and that there was no counterclaim against it.

The facts stated in the affidavit required the action of the judicial mind, were sufficient to satisfy the judge that the plaintiff was entitled to the writ, and if they did so satisfy him, as they did, the attachment will not be vacated.

There are many adjudicated cases in our reports upon this question, but they all depended upon their peculiar facts, and but little aid can be derived from their examination.

Our conclusion is that the order should be affirmed, with ten dollars costs and disbursements.

Barnard, P. J., and Pratt, J., concur.