Ladenburg v. Commercial Bank of Newfoundland

This is an appeal from an order made upon a motion by a subsequent attaching creditor to set aside a prior attachment upon the papers upon which it was granted. No question is presented as to the status of the moving party; and the only points brought up for review are those arising on the papers upon which the first attachment was granted, and the right of the court, after the making of the motion, to set the same aside upon the papers upon which it was granted, to allow the introduction of amendatory affidavits. The attachment sought to be set aside was granted upon the affidavit of one of the plaintiffs, which alleged that the defendant was a foreign corporation, organized and existing under the laws of the dominion of Canada, doing business at St. Johns, Newfoundland ; that a cause of action existed in favor of the plaintiffs against the defendant to recover a sum of money, of the character mentioned in the act authorizing attachment ; that the plaintiffs were bankers in the city of New York, and the defendant was a banking corporation; and that on the 19th of November, 1894, at St. Johns, Newfoundland, the defendant made certain bills of exchange, dated on that day, and directed the same to the London & Westminster Bank of London, and by said draft required said Loudon & Westminster Bank to pay to the order of themselves (evidently meaning the drawers of the drafts), sixty days after sight, a certain sum of money. The affidavit further stated that thereupon the said defendant indorsed and delivered said bills of exchange to the National Bank of the ¡Republic of the City of New York, who sold the same to the plaintiffs. The affidavit then alleges, upon information and belief, that said bills of exchange were thereupon presented to the London & Westminster Bank at London for acceptance on or about the 7th day of December, 1894, but the same were not accepted, and were thereupon duly protested for nonacceptance, of all of which due notice was given to the defendant, and payment of the defendant was thereupon demanded. The affidavit further alleges that the source of the deponent’s information and belief was a cable received from the correspondent of deponent’s firm in London; and that no part of said acceptance had been paid, and there was then due from the defendant to the plaintiffs a certain sum over and above all counterclaims.

The ground which was insisted upon in the court below for the vacation of the attachment was that it appearing that the defendant was a foreign corporation, and that the cause of action arose

It has been suggested that the legislature had no power to limit the j urisdic-tion of the supreme court by the alleged restrictions which it has placed upon it by the provisions of the Code. An examination of the law, however, seems to establish the fact that every provision of the statute, instead of being a restriction of jurisdiction, has been an extension thereof. The supreme court, prior to the provisions contained in the Revised Statutes (volume 2, page 459, section 15), had no jurisdiction against foreign corporations, unless it could obtain jurisdiction of the persons of such corporations. Then this jurisdiction was enlarged by the enactment in question, which provided that suits brought in the supreme court by a resident of this state against any corporation created by or under the laws of any other state, government, or country, for the recovery of any debt, claim, or demand, might be commenced by attachment. This seems to have been the first legislation authorizing a proceeding in rem against a foreign corporation, and then such proceedings could only be instituted by a resident of the state.

In 1849, by chapter 107, the fifteenth section of the Revised Statutes was amended as follows :

“Suits may be brought in the supreme court, in the superior court of the city of New York, and in the court of common pleas in and for the city and county of New York, against any corporation created by or under the laws of any other state, government or country for the recovery of any debt or damages, whether liquidated or not arising upon contract made, executed or delivered within the state; or upon any cause of action arising therein. Such suits may be commenced by complaint and summons, together with an attachment as provided by law.” etc.

It will thus be seen that by the legislation which has taken place there has been no restriction of jurisdiction, but rather an enlargement thereof. Such being the case, such legislation cannot be held to have in any way infringed upon the constitutional protection of the jurisdiction of the supreme court; and therefore in the case at bar, the cause of action having arisen out óf this state, the supreme court has no jurisdiction unless the plaintiffs were residents.

It is urged upon the part of the respondent that the allegations in the affidavit allege that the plaintiffs were residents of the state of New York. An examination of this affidavit, however, will show that it contains no such allegations. All that it alleges is that the plaintiffs are a firm doing business as bankers in the city of New York. They may have resided in New Jersey, in Connecticut, or in Europe, and yet this allegation be perfectly trne. It is urged that no case can be found in the books that any similar statement is held to be an insufficient allegation of residence in the absence of express contradictory evidence. It may possibly be that no such case can be found, because it never before, perhaps, had been claimed that such an allegation is equivalent to an allegation of residence. In fact, we find in the provisions of the law in regard to supplementary proceedings an express 'provision recognizing the fact that doing business m a location is not residence, because an execution, to form the foundation for the examination of a debtor in such proceedings, may be issued to the sheriff of the county where the judgment debtor has at the time of the commencement of the proceeding a place for the regular transaction of business in per

We then come to consider the question as to whether additional papers could be allowed to be filed nunc pro tune for the purpose of sustaining the attachment. The rule seems to be thoroughly well settled that, where a motion is made to vacate an attachment upon the papers upon which it was granted, the attachment must stand or fall according to the sufficiency of the papers, Book-binding Co. v. Hart, 85 N. Y. 500 ; Bank v. Alberger, 75 id. 179 ; Yates v. North, 44 id. 271; Smith v. Arnold, 33 Hun, 484 ; Kahle v. Muller, 57 id. 144; 32 St. Rep. 448 .

There is another defect in the papers presented, which, although attention has not been called to it by the counsel for the appellant, in view of the conclusion at which we have arrived upon the other branch of the case, we do not think should be passed unnoticed. The allegation is that the source of deponent’s information and belief as to the presentation and protest of the note in question, and the giving of notice, is founded upon a cable received from the correspondent of the deponent’s firm in London. This is wholly insufficient to form any basis of judicial action. The judge granting the attachment must be satisfied by the evidence presented, and he cannot be satisfied by the satisfaction of the affiant. It is not the plaintiff that is to be satisfied ; it is the judge granting the attachment. And there is no judicial reason for the judge’s satisfaction simply because the plaintiff is satisfied, which is all that such an allegation amounts to. The affiant is satisfied of the fact because of the cable ; but what is in the cable the courtis not informed, and it is impossible for it to tell whether the affiant’s satisfaction is justified by the cable or not. Being a party interested, he may have been satisfied, and have believed without the slightest foundation for any such satisfaction or belief. Where a party alleges upon information and belief, and states, that the sources of his information are certain writings, the court is entitled to know what the writings are, in order to see whether the affiant is justified in his belief or not. In other words, on these applications, facts, not inferences, must be presented. Bank v. Alberger, 78 N. Y. 252 ; McCulloh v. Aeby & Co., 31 St. Rep. 125 ; and other cases might be cited. To sum up the whole matter, it would seem that it is necessary that there should be presented to the court, upon the face of the papers, facts establishing a reasonably certain right of recovery; and where the existence of certain facts is necessary to a recovery, unless such facts are shown, there is presented no right to recover, nor is any cause of action shown to exist.

The order appealed from should be reversed, with costs, and the motion to vacate the attachment granted, with costs.

. All concur.