Market National Bank v. Pacific National Bank

Headnote

Judicial notice —a court or judge cannot take judicial notice that a bank located in a foreign State is insolvent.

Appeal from an order vacating an attachment, and from an order resettling such order.

The papers upon which attachment was granted showed that the défendant was a foreign corporation, and the attachment appears to have been granted on that ground •; the papers also contained the following statement: “ That deponent is informed that the defendant is in embarrassed and failing circumstances, and so believes.” The order, as resettled nunc fro Pune as of the date when the same was made, was made to read as follows: “ A warrant of attachment having been granted by me on the 19th day of November, 18S1, in the above entitled action, against the property of the defendant, and the said warrant having been granted inadvertently, the fact being then judicially known to me that the defendant, a national banking association, had suspended payment and was insolvent, and application having been made to me to Vacate said warrant of attachment ; now, therefore, due notice having been given to the plaintiff’s attorneys, and they having appeared before me, and being duly apprised of the inadvertence under which said warrant was granted,. and of the judicial knowledge possessed by me of the insolvency of said defendant, and the fact of such insolvency not being controverted, the said warrant of attachment, granted by me on the 19th day of November, 1881, on the part of the defendant herein is hereby discharged, vacated and set aside.”

The court at General Term said: “ This order purports to resettle the order granted January 20, 1882, and- consequently must rest upon the facts substantially as they were presented to the judge when he vacated the attachment; otherwise, under the pretense of resettling an order, a new motion would be entertained, and another order substituted based upon additional facts. W e are convinced that the learned judge, in vacating the attachment, relied upon public rumor in regard to the pretended insolvency of the defendant, as such fact was not disclosed by the papers or in any reliable form upon which the attachment was granted, and no such ground was relied upon. Indeed the orders, in effect, support this view, and the question is therefore presented, whether judicial notice can be taken by the court, or by a judge thereof, that a bank located in a foreign state is insolvent or in failing circumstances, and base upon such information an important decision. We have not been able to - discover an adjudication which extends the rule of evidence in this respect far enough to sustain the orders in this case. To justify a court or judicial officer in acting upon knowledge or information thus acquired, it can only be in regard to a matter which has become notorious, and of general public interest and concern, and not in regard to a transaction, custom or event of mere local or private interest, possessing little notoriety. (Smith v. Miller, 43 N, Y., 1T1; Slater v. Jewett, 85 id., 63, 68; Agawam Bank v. Strever, 18 id., 502; Porter v. Waring, 69 id., 250.)