Nason Manufacturing Co. v. Craft Refrigerating Machine Co.

Majority

p. 224

Nason Manufacturing Company, Resp’t, v. Craft Refrigerating Machine Company, App’lt.

(Supreme Qourt, General Term, First Department,

Filed November 16, 1894.)

Headnote

1. Attachment—Affidavit.

An allegation in the affidavit that the sum therein mentioned is justly due and owing and that the plaintiff is entitled to recover that amount from the defendant over and above all counterclaims, is a sufficient averment of indebtedness to sustain an attachment.

3. Same.

An affidavit by the officer of a corporation that the complaint is true “ of his own knowledge," is sufficient, though it does, not state that he was an officer when the debt was contracted.

Appeal from an order denying a motion to vacate an attachment.

The affidavit on which the attachment was granted is as follows: Samuel Grreason, being duly sworn, says: “ That he is treasurer and general manager of the Nason Manufacturing Company, the plaintiff herein. (1) That the plaintiff above named, a domestic corporation, organized and created under the laws of the state of New York, is entitled to recover from the defendant above named, the Craft Refrigerating Machine Company the sum of ten hundred and seventy-eight and 73-100 ($1,078.73) dollars, with interest from the 22d day of August, 1894, over and above all counterclaims known to the plaintiff or to any of its officers or agents, upon one of the causes of action mentioned in § 635 of the Code of Civil Procedure, and particularly set forth in subdivision 2 of this affidavit. (2) That this action is brought to recover damages for a breach of contract, express or implied, other than the contract to marry, to wit, the refusal to pay as agreed the sum of $1,078.73, as more fully appears in the complaint herein, verified the 5th day of September, 1894. That no part of said sum of $1,078.73 has been paid, and the whole amount thereof, with interest from August 1, 1894, remains justly due and owing thereon from defendant to plaintiff, over and above all offsets and counterclaims known to plaintiff, or to any of its officers or agents. (3) That the defendant, the Craft Refrigerating Machine Company, is not a resident of the state of New York, but is a foreign corporation, organized and existing under the laws of the state of Connecticut, having its principal place of business at the city of New Haven, in said state; and that plaintiff is a domestic corporation, organized and existing under the laws of the state of New York, having its principal place of business at the city of New York. (4) That the plaintiff is about to commence an action against the defendant for the cause above stated,

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by issuing the summons, and serving it, with a' copy of the complaint, hereto annexed, and no previous application for an attachment has been made herein.

Frederick Seymour, for app’lt; Ghas. De Hart Brower, for resp’t.

The attachment was granted upon an affidavit and complaint, both of which were verified by Samuel Greason on September 5, 1894. The cause of actigm was for goods sold and services performed during a period of about fifteen months prior to and ending on August 22, 1894. Mr. Greason swears in his affidavit used upon the attachment that he is the treasurer and general manager of the plai ntiff. The two objections presented against the sufficiency of such affidavit and complaint are that there is no allegation that the goods were reasonably worth any sum, and that it is not stated that at the time the goods were sold and delivered or the services performed Mr. Greason had any connection with the plaintiff corporation. The first objection is disposed of in the opinion of the court below. In regard to the second, while it is true that in the affidavit the statement appears that Mr. Greason is the treasurer and general manager of the plaintiff, it is insisted that no inference from this can be drawn that he was such officer at the dates of the transaction sued upon. Whatever force there might be in this is met by the complaint, which accompanied the affidavit, and was referred to in it, and was part of the papers on which the attachment was granted, and which, in its verification, contains the statement that as treasurer of the plaintiff he has read the complaint, and “that the same is true of his own knowledge.” The support thus furnished to the affidavit by the complaint in respect to both objections as to the sufficiency of the papers entirely disposes of and answers them.

We think that the order appealed from was right, and should be affirmed, with ten dollars costs and disbursements.

The opinion of Mr. Justice Lawbence is as follows: The motion to vacate the attachment in this case will be denied on the authority of the case of Am. Exch. Nat. Bank v. Voisin, 44 Hun, 85 ; 7 St. Rep. 381 . In that case it was held that an attachment which was issued in an action upon an affidavit made by the plaintiff’s cashier, which stated, among other things, that “ the plaintiff did, in September, 1886, advance and loan to the defendant the sum of $5,500, no part of which had been paid, and that said sum was then justly due and owing from the defendant to the plaintiff, over and' above all counterclaims known to the .plaintiff,” might be sustained on the presumption, from the tenor :of the affidavit, that the officer had actual knowledge of the facts which were therein stated in positive terms. In this case the attachment was issued upon an affidavit of the treasurer and general manager of the Nason Manufacturing Company, and it is expressly stated that “ the action is brought to recover damages for a breach of contract, expressed or implied, other than a contract to marry, to wit, the refusal to pay as agreed the sum of $1,078.73, as more fully appears in the complaint verified the 5th

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day of September, 1894. It is further alleged, that no part of said sum has been paid, and that the whole amount thereof, with interest from August 1, 1894, remains justly due and owing thereon from defendant to plaintiff, over and above all offsets and counterclaims known to plaintiff, or to any of its officers or agents.” This is a positive averment on the part of the officer making the affidavit that the sum aforesaid is due and owing, and the case of Am. Ex. Nat. Bank v. Voisin, above referred to, is authority for the presumption that the treasurer and general manager of the company, who makes the affidavit, had actual knowledge of the facts. There is not necessarily any conflict between the case of Am. Exch. Nat. Bank v. Voisin, supra, and the case of Manufacturers' Nat. Bank v. Hall, 60 Hun, 466 ; 39 St. Rep. 463 , as in the latter case it does not appear that the president had any knowledge of the financial condition or affairs of the company, nor that he was president at the time the transaction took place oat of which the indebtedness arose, which the action under which the attachment issued was brought to recover. In this case the affidavit is made by the treasurer and general manager of the company, and a treasurer and general manager may be presumed to have knowledge of the financial condition of the company.

As to the second point taken by the counsel for the defendant, — that there is no allegation in the papers that the goods were reasonable worth any sum whatever,—I deem it sufficient to say that, as the affidavit on which the attachment was issued distinctly avers that “the sum therein mentioned is justly due and owing from the defendant to the plaintiff, and that the plaintiff is entitled to recover that amount from the defendant over and above all counterclaims, ” there is a sufficient allegation of indebtedness to sustain the attachment. See Allen v. Patterson, 7 N. Y. 476 .

Ten dollars costs to plaintiff.

Ordered accordingly.