Lange v. Lewi — 58 N.Y. Super. Ct. 265

Majority

p. 265

EDWARD LANGE, Appellant v. DAVID LEWI, Respondent.

Headnote

Claim and delivery, in what right defendant may re-bond, sufficiency of affidavit on re-bonding.

The defendant in an notion of claim and delivery may re-bond on the ground that a third party is entitled to the property without connecting himself with the title of such third party.

An affidavit by the defendant alleging that such third party “is as deponent is informed and believes the owner of said property subject only , to deponent’s right,” is sufficient.

Before Freedman and O’Gorman, JJ.

Decided June 27, 1890.

Appeal by plaintiff from an order denying his , motion to compel a delivery to him by the sneriff of certain articles.

The question involved on this appeal is as to the sufficiency of an affidavit delivered to the sheriff-to prevent the delivery by him to the plaintiff of certain articles taken by him under a requisition issued to him by plaintiff in an action of claim and delivery. The affidavit was as follows :

“ City and county of New York, ss :

David Lewi, of said city, being duly sworn, says that he is the defendant herein ; that the summons in this action was personally served upon deponent on the 24th day of April, instant ; that no copy of the complaint has been served on him ; that annexed to said summons was a copy of affidavit, showing that said action has been commenced to recover certain chattels particularly described in a schedule to such copy affidavit annexed ; that the defendant is lawfully entitled to the possession of said chattels by virtue of a special property therein to wit: this deponent holds the same as a warehouseman and

p. 266

as the depositary of Alexander Agar, who is, as deponent is informed and believes, the owner of said chatties, subject only to deponent’s rights and property therein.”

The judge at special term on denying the motion wrote :

Tbuax, J.—“ The Code of Civil Procedure, § 1723, authorizes a defendant in an action for a chattel to defend on the ground that a third person was entitled to the chattel without connecting himself with the latter’s title. Section 1704 says that the affidavit required by that section must contain ‘ an allegation,’ &c. There is such an allegation in the affidavit delivered to the sheriff. Thatitis made on information and belief is immaterial, for he is authorized to defend on information and belief. Motion denied, with costs to abide event.”

The other facts sufficiently appear in the opinion.

Carter, Hughes & Cravath, attorneys, and Frederick R. Kellogg of counsel, for appellant, among other things, argued:

II. The defendant’s affidavit, delivered to the sheriff with the notice requiring the return of the chattels to the defendant, is entirely insufficient to authorize such return. The Code requires an affidavit containing an allegation, either that the defendant is the owner of the chattels, or that he is lawfully entitled to the possession thereof by virtue of a special property therein, the facts with respect to which must be set forth. It is not pretended by the affidavit in question that defendant is the owner of the chattels, he must therefore rebond by virtue of having a special property therein and must set forth the facts with respect to such special property. The provision of the Code above referred to which is couched in the same language as § 1695 relating to the plaint

p. 267

iff’s affidavit upon issuance of the replevin writ, does not mean, as indicated in the opinion of the court at special term, that a general allegation of the legal conclusion that the defendant has a special property in the chattels is all that is necessary. Depew v. Neal, 2 Abb. 135 ; Fairbanks v. Bloomfield, 2 Duer, 349 ; Gibson v. Levy, lb. 176. Under the interpretation of the statute given by these cases this affidavit is wholly insufficient, (a) The mere statement of the legal conclusion that defendant has a special property in the chattels is not in itself of any force. It must depend solely upon the facts stated as its basis, (b) The only positive allegations of the affidavit do not show any special property in defendant. The only facts alleged positively in the affidavit for the purpose of showing special property are, that defendant holds the chattels as a warehouseman and as the depositary of Alexander Agar. No lien or charge upon the property in behalf of defendant himself is attempted to be shown. This simply constitutes defendant a mere depositary having no independent lien, and as such he has no special property in the chattels. Story on Bailments, 8th ed., §§ 93 to 95, inclusive; Commonwealth v. Morse, 14 Mass. 217 ; Waterman v. Robinson, 5 lb. 303 ; Dillenbach v. Jerome, 7 Cow, 294 ; Norton v. People, 8 lb. 137 ; Giles v. Grover, 6 Bligh. 277 ; Baker v. Hoag, 7 N. Y. 557 .

II. The allegations of the ownership of Agar are insufficient to show any special property in defendant. Harrison v. McIntosh, 1 Johns. 380 ; 10 Johns. 372 ; 8 Wend. 45 .1; 12 lb. 74 ; 2 Abb. 137 . But further they being on information and belief, must be disregarded. The general assertion of a fact upon information and belief in an affidavit, where the source of deponent’s information and the grounds of his belief are not set forth, has no probative force as to the existence of that fact, and must be disregarded. Chambers v. Durand, 33 Supr. Ct. 404 ; Mowry v. Sandborn, 65

p. 268

N. Y. 584 ; Lyon v. Baxter, 64 How. 426 ; St. Amant v. De Beixcedon, 3 Sandf. 703 ; Steuben Co. Bk. v. Alberger, 78 N. Y. 258 ; Neal v. Sachs, 15 W. D. 477 ; St. Amant v. De Beixcedon (supra) ; Perry v. Volkening, 44 Supr. Ct. 332 ; Fowler v. Burns, 7 Bosw. 637 ; People v. Mayor, 9 Abb. 253 ; Richters v. Littel, 21 W. D. 133 ; Dreyfus v. Otis, 54 How. 408 ; Hale v. Rogers, 22 Hun, 19 ; Morris v. Matthews, 19 W. D. 376. In the opinion at special term, the court attempted to uphold the allegations upon information and belief by saying that inasmuch as the Code authorizes a defendant in replevin to set up in his answer the title of a third party in response to plaintiff’s claim, and inasmuch as such title might in his answer be alleged on information and belief, that therefore, in his affidavit for the redelivery of the chattels to him the defendant would not be compelled to be more positive in his averments than would be required in his answer. But by such reasoning the whole distinction between an interlocutory application where the only proof is furnished by affidavit and the trial of the action where the proof is furnished not by the pleadings but by the sworn testimony of witnesses, subject to oral cross-examination, is overthrown. The position of the court at special term ignores the fact that the defendant’s answer is not in itself any proof of the facts therein contained nor is it needed to be; but is simply serviceable in framing issues which are afterwards to be proven by oral and sworn testimony in open court. As well might one say that since the plaintiff in an action for goods sold and delivered may make the allegations of his complaint upon information and belief, therefore he is entitled to obtain a warrant of attachment against defendant’s property upon affidavits on information and belief, or that a plaintiff in an injunction suit whose complaint does not contain positive allegations is entitled to a temporary injunction upon affidavits framed

p. 269

in the same manner as those of his pleading. Yet nothing can be clearer than such is not the law. Affidavits presented upon interlocutory application are not governed by the rules relating to the verification of pleadings. Hecker v. Mayor, 18 Abb. 371 ; Steuben Co. Bk. v. Alberger (supra) ; and other cases cited supra.

Hays & Greenbaum, attorneys for the sheriff; J. G. Flammer, attorney for respondent, and John L. Hill of counsel, on the questions' considered in the opinion, argued:—

A proper affidavit was served with notice as required by §1704. Defendant was clearly justified in defending on his special property (lb. Sub. 1) or by reason of Agar’s claim of title (§ 1723). His affidavit sufficiently set forth the facts. The affidavit required by §1704 must be by defendant, and not that of any other person. He is not obliged to prove the validity of his claim, for there is no provision for any supporting affidavit. He, therefore, must state the facts as he would state them in an answer, and that he did.

This is an appeal from an order denying plaintiff’s motion to compel delivery by sheriff to plaintiff of property which the sheriff on plaintiff’s requisition had taken in replevin. It appears that the defendant is a warehouseman; that he received the goods in question from one Alexander Agar on storage and issued his receipt therefor, and that he prevented a delivery to the plaintiff by delivering to the sheriff the notice, affidavit and undertaking required by § 1704 of the Code of Civil Procedure. The affidavit was sufficient for the reasons stated by the learned judge below, and we can see no merit in any of the points raised by the appellant.

The order should be affirmed with ten dollars costs and disbursements.

Cases cited

Harrison v. M'Intosh 1 Johns. 380 N.Y. Sup. Ct. p. 267
St. Amant v. De Beixcedon 3 Sandf. 703 N.Y. Super. Ct. 1851-01-18 p. 268
Fowler v. Burns 7 Bosw. 637 N.Y. Super. Ct. 1860-11-10 p. 268