Belden v. Wilcox

Headnote

Attachment — when set aside because of the insufficiency of the allegation in the affidavit, as to the amount due over cmd aboce all counter-claims.

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

All the allegations contained in the affidavit iipon which the attachment was granted are made upon information and belief. The sources of the affiant’s information and the grounds of his belief in regard to the facts alleged in the affidavit made April 7, 1887, are stated to have been derived from a complaint and affidavits now on file in the office of the clerk of the city and county of New Y ork, which affidavits had beenmade on or about the 3d of March, 1887.

The court at General Term said: “ Without in any way considering the question as to whether the affidavit upon which the attachment in suit was granted was defective in any other particular, it seems to be sufficient for the disposition of this appeal to call attention to the provisions of the Code and to the requirements thereof in reference to the question of the existence of counter-claims where the action is to recover damages for the breach of a contract. The Code of .Civil •Procedure provides (§ 636) that to entitle the plaintiff to a warrant of attachment, he must show by affidavits that a cause of action exist? against the defendant, and that if the action is to recover damages for the breach of a contract, such affidavit must show that the plaintiff is entitled to recover a sum stated therein over and above all counterclaims known to him. In the affidavit upon which the attachment in suit was granted, there is a simple allegation to the effect that the

affiant is informed and believes that tbe plaintiff is justly entitled to recover tbe sum of $2,000 and 'interest, over and above all counter-claims known to bim. This affidavit was made on the 1th of April, 1881, more than five weeks after the affidavits referred to as the sources of the affiant’s information. No reason is given for not producing the affidavit of the plaintiff, and although no counterclaim may have existed at the time of the making of the first affidavit by the plaintiff, there is nothing to show that that condition of affairs may not have changed prior to the time of the making of the affidavit by the attorney.

“ This is clearly not a compliance with the provision of the Code, which is explicit, that to entitle the plaintiff to a warrant he must show by affidavit that he is entitled to recover a sum stated therein, over and above all counter-claims known to him. It is undoubtedly true that under certain circumstances the affidavit may be made upon information and belief. But when no excuse is given for the failure to furnish the affidavit of the plaintiff, and it does not appear that the affiant upon whose affidavit the attachment is granted has had any communication upon the subject of the cause of action for a month or six weeks prior to the time of the application for the attachment, it does not seem that the requirement of the Code has been complied with. The remedy by attachment is-an extreme one. It is the issuing of an execution before judgment, and the rights of the absent defendant should certainly be protected to the extent that the provisions of the Code require.

“ The order appealed from should be reversed with costs, and the attachment vacated.”