Talcott v. American Credit Indemnity Co. — 88 N.Y. Sup. Ct. 577

Majority

p. 577

James Talcott, Respondent, v. The American Credit Indemnity Company, Appellant.

Headnote

Attachment — insufficient proof of plaintiff's residence and of the place where the cause of action originated.

■Wien neither the affidavit upon which an attachment was granted nor the complaint in the action contains any averment as to the residence of the plaintiff or the place where the cause of action-originated, the order granting the warrant of attachment must he reversed; recitals in an instrument referred to in the complaint cannot supply the place of such averment.

Appeal by the defendant, The American Credit Indemnity Company, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 19th day of October, 1894, denying the defendant’s motion to vacate a warrant of attachment granted in the action on the 4th day of October, 1894.

John V. Bouvier, Jr., for the appellant.

T. G. Strong, for the respondent.

Neither the affidavit upon which the attachment was granted nor the complaint contains any averments as to the residence of the plaintiff or the place of origin of the cause of action. The recitals in the instrument referred to in the complaint cannot supply the place of an averment, as they are mere words of description and not of allegation.

The order should be reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.

Present — Yan Brunt, P. J., O’Brien and Follett, JJ.

Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.