Hingston v. Miranda — 9 N.Y. St. Rep. 80

Majority

p. 80

Charles Hingston, Resp’t, v. Jose R. Miranda, App’lt.

(Supreme Court, General Term, First Department,

Filed May 13, 1887.)

Headnote

Practice—Attachment—Sufficiency of affidavit.

The affidavit on which the attachment was granted stated that deponent was a member of a firm in New York city, and was the correspondent of the plaintiff in the action, who resided in England; that the defendant resided in Spain, and then states, on information and belief, the cause of action, and that the sum due to plaintiff was over and above all counterclaims, and that deponent’s knowledge and the grounds of his belief were correspondence with the plaintiff and cables received from the plaintiff by deponent’s firm. Neither the letters nor copies of them were produced. Held, that the affidavit was insufficient. That it contained no sworn evidence .that a debt had been created or that the amount claimed was due to plaintiff over and above all counter-claims.

Appeal from order denying motion to vacate attachment.

The following is the affidavit referred to in the opinion: “Horace W. Day, being duly sworn says, that he is a member of the firm of Sgobel & Day, and carries on business in the city of New York, and is the correspondent of Charles Hingston, the plaintiff in this action, who resides in the city of London, England. That the defendant above named resides at Padules, Almería, Spain, and is a nonresident of the state of New York, and deponent is informed and believes that a cause of action arising upon contract for damages for the breach of a contract, other than a contract to marry, exists in favor of said plaintiff against the said defendant for moneys loaned, advances made and services rendered by the said plaintiff to the said

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defendant, at his request, amounting to £450 sterling, which sum is of the value of $2,189.92, and that said sum is due to the said plaintiff from the said defendant over and above aH counter-claims known to plaintiff, and that deponent’s knowledge and the grounds of his belief are correspondence with the said plaintiff and cables received from the plaintiff by deponent’s firm informing them of the matters aforesaid.

That the plaintiff is about to commence an action against the defendant for the cause above stated by issuing the summons hereto annexed, and that no previous apphcation for an attachment has been made herein. ”

Jose G. Morales, for app’lt; Geo. A. Black, for resp’t.

The affidavit on which this attachment was issued was whoUy insufficient as proof of the facts upon which alone the law aEows so harsh a proceeding to be taken by a creditor against his debtor. It contains no sworn evidence that a debt has been created or that the amount claimed is due to the plaintiff over and above all counter-claims, and is no more than a repetition of unsworn statements made by the plaintiff or in his behalf to the person making the affidavit. In fact it does not amount to as much as that, for the statements themselves have not been set forth in the affidavit showing that they had been followed by the person who made it. The case is clearly within those of DeWeerth v. Feldner ( 16 Abb., 295 ); Marine National Bank v. Ward ( 35 Hun, 395 ); Gribbon v. Bach ( 35 Hun, 541 ); and Buhl v. Ball ( 41 Hun, 61 ; 2 N. Y. State Rep., 270).

The order appealed from must, therefore, be reversed, with ten dollars costs and disbursements.