Dolbeer v. Stout — 60 N.Y. Super. Ct. 269

Majority

p. 269

FRAZIER M. DOLBEER, Respondent v. JOHN STOUT, Appellant.

Headnote

Attachment, warrant of, vacation of same on motion.

The plaintiff, by whom the attachment against the defendant -was obtained, is the assignee of the cause of action. The affidavit upon which the attachment was issued was made by him, and in it he swears that the sum claimed is due “ over and above all counter-claims known to him." The defendant claims that the affidavit is insufficient because the plaintiff being only an assignee should have added to the above the words “ or to his assignors,” and that he should also have shown the sources from which he derived his knowledge, that there were no counter-claims.

Held, that the language used by the plaintiff is the exact phraseology required by section 636 of the Code in that regard. The rule is not the same where the affidavit is made by an agent or attorney of a plaintiff as it is when made by the assignee of a claim who is himself the plaintiff. In the latter case the mere statement required by section 636 of the Codo is sufficient. This conclusion is logical and just, because the law will presume that the owner of the claim, having made himself liable for costs and given a bond, has knowledge of what he states, stands upon the same footing as his assignor would have stood had he not assigned the claim, but had become the plaintiff in an action to enforce it. If the plaintiff makes the affidavit of his own knowledge, the language of the Code is sufficient, -whether the plaintiff is the assignee or the original owner of the claim, unless it affirmatively appears that he could not have had any personal knowledge of the matter.

Before Freedman, P. J., and Gildersleeve, J.

Decided January 11, 1892.

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Appeal from an order denying motion to vacate an attachment.

Thomas J. Farrell, for appellant, argued :—

I. It does not appear from the respondent’s affidavit that he ever had any business relations with the appellant or any means of knowing, of his own knowledge, that the said claim is due over and above all counterclaims. An attachment is a provisional remedy of a very severe nature, and it should not be sustained, unless the affidavits are clearly sufficient for granting the warrant. O’Brien v. Carroll, 1 Law Bull., 9.

II. The affidavit of the respondent, where he makes oath that there are no counter-claims “ known to him,” may be technically true, but any stranger to the transaction, taking an assignment of the claim, could, with equal truth, make an affidavit to the same purport. The respondent simply swears that he does not know of any counter-claims, but it does not appear that, if there was a counter-claim, he would have known it. The fair and rational construction of the provision requiring proof of non-existence of counter-claims is that the court should be placed in possession of all facts connected with the transaction by a person who is thoroughly acquainted with it in all its phases, who knows that there are no counter-claims arising out of it, and whose relations to all the parties in interest are such as to fairly justify him in stating on oath that no counter-claims or offsets exist. Mallory v. Allen, 7 Civ. Proc. R., 287.

III. In cases where an affidavit on attachment is made by an agent or attorney, it must be shown that the party making the affidavit had such relation to the business of the principal as to justify the inference of his knowledge as to the facts he swears to. Cribben v. Schillinger, 30 Hun, 248 ; Belden v. Wilcox, 47 Ib., 331; Ruppert v. Haug, 87 N. Y., 141 ; Lee v. Cooperative L. Assn., 19 State Rep., 879. In the present case there

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is nothing in the respondent’s affidavit showing that he ever had any business connection or dealings with appellant, or that he knows anything about the transactions between the appellant and Frederick C. Linde & Co., which is the subject of the present suit.

Edward S. Clinch, for respondent, argued:—

I. The affidavit is made by the plaintiff, who states, positively, all the facts required by section 636 of the Code. That section requires an affidavit to the satisfaction of the judge granting the attachment, and it has been held that, where the affidavit sets forth enough to call on the officer for the exercise of his judgment, it gives jurisdiction. Conklin v. Dutcher, 5 How., 386 ; Skinnion v. Kelley, 18 N. Y., 355 ; Kissock v. Grant, 34 Barb., 144 . A decision conclusive of the questions presented on this appeal is that in Crowns v. Vail, 21 N. Y. State Rep., 208; S. C., 51 Hun, 204 , where it was held that statements in affidavits will he presumed to have been made on personal knowledge, unless stated to have been on information and belief, and unless it appears affirmatively and by fair inference that they could not have been, and were not, on such knowledge. For instance, if it appears on the face of the papers that the affidavit is made by an attorney-at-law of the plaintiff, the court will presume that the attorney has no knowledge other than such as he derived while acting as attorney of the plaintiff, and require him to state the grounds upon which he bases his aveiments, hut there is nothing on the face of the papers, in this case, which justifies any inference that the plaintiff does not know of what he speaks wdien he says, in his affidavit, that the facts are as there stated. It certainly does not appear affirmatively, nor by inference, that the allegations in the affidavit could not have been, and were not, made on the personal knowledge of the plaintiff. In the later case of Hill v. The Knickerbocker Electric Light

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Co., N. Y. Law Journal, Nov. 27, 1891, 38 N. Y. State Rep., 417, the general term of the Supreme Court for the •first department, following the decision in Crowns v. Vail, held that, in an action brought by an assignee of a claim, an attachment granted upon the affidavit of the assignee, setting out the necessary facts as if within his personal knowledge, is properly granted, unless it .clearly appears by said affidavit that the circumstances are such that such facts could not possibly have been •within his own knowledge.

II. In respect to the second ground, it is sufficient to state that the section requires an affidavit, showing that the plaintiff is entitled to recover a sum stated therein, over and above all counter-claims Imown to him. The affidavit states that the plaintiff “ is entitled to recover said sum of $4,811.46, with interest thereon, from the 6th day of June, 1891, over and above all counter-claims known to him.” There rvas nothing upon the face of the papers upon Avhich the warrant of attachment was granted in this case, which justifies the inference that the plaintiff did not have positive knowledge of what he swore to.

This is an appeal from an order denying defendant’s motion to vacate an attachment. The plaintiff, by whom the ■attachment was obtained against the defendant, is the assignee of the cause of action. The affidavit upon which the attachment was issued was made by him; and in it he swears that the sum claimed is due “ over and above all counter-claims known to bim.” The defendant claims that the affidavit was insufficient for the reason that as the plaintiff is .only the assignee of the cause of action, he should have added the words “ or to his assignors,” and that he should have shown from what sources he derived his knowledge that there were no counterclaims.

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The language used by the plaintiff is the exact phraseology required by section 636 of the Code in that regard. He makes the statement absolutely, without giving the sources from which he obtained his knowledge. The learned counsel for the appellant urges that it might well be that the plaintiff, the assignee of the cause of action, might not know of any counter-claim, being only partially familiar with the business transactions out of which the claim grew; while, at the same time, there might, in point of fact, be a counter-claim known to the assignors of plaintiff. It may be suggested, in answer to this, that it is just as reasonable to suppose that the plaintiff, on being made assignee of the cause of action, would naturally inquire, as an intelligent and prudent man should, into the transactions involved; and if there were any counter-claims, that he would ascertain them.

The case of Crowns v. Vail, 51 Hun, 204 , which controlled the decision of the court below, is exactly in point. Likewise, in the case of Mallary v. Allen, 15 Abb. N. C., 338 , the general term of the City Court of New York held that the expressio n known to him,” in section 636 of the Code,—referring to the allegation in regard to counter-claims in the affidavit,—is a mere limiting clause, and proof of the plaintiff’s knowledge that there is no counter-claim is not essential to confer jurisdiction to issue the warrant. In that case, as in the case at bar, the plaintiff was the assignee of the cause of action.

In the case of Doctor v. Schnapp, Civ. Pro. R., 144, the City Court general term held, where one of several plaintiffs made the affidavit for attachment, that the law will not infer the matters positively sworn to are not within the personal knowledge of the affiant, unless it is apparent that such knowledge is a matter of impossibility.

The case of Ruppert v. Haug, 87 N. Y., 141 , cited

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by the counsel for the appellant, is not analogous to the case at bar, for the reason that in that case the affidavit merely stated that the plaintiff was entitled to recover the sum of money specified, without any reference to a counter-claim whatever; which is manifestly not in accordance with the requirements of section 636 of the Code.

Neither does the case of McVicar v. Campanini, 19 State Rep., 56, cited by the appellant, apply, for the reason that in that case the affidavit was made by the agent of the plaintiff, without stating his sources of knowledge.

Nor is the case of Lee v. Co-operative Life Association, 19 State Rep., 879, in point, as in that case the affidavit was made by the brother-in-law of the plaintiff, who fails to show any knowledge of the matter.

Neither does the case of Cribben v. Schillinger, 30 Hun, 248 , apply, as in that case the affidavit was made by one of the attorneys for the plaintiff, in which he merely stated that his knowledge of the matter was derived from a letter sent to him by plaintiff, containing ;a .statement of the account, upon which the action was founded 5 which is clearly insufficient, as he does not even claim that he was informed by the plaintiff of the non-existence of a counter-claim.

Nor is the case of Beldon v. Wilcox, 47 Hun, 331 , at all decisive of this appeal, as the affidavit there was made by a third person on information and belief, without stating any reason why the plaintiff did not make the affidavit, and setting forth that his information was derived from a .complaint and affidavits, filed in the office of the county clerk, more than five weeks prior to the time of the making of the affidavit in the attachment proceeding, with nothing to show that within those five weeks a different state .of facts had not arisen. This plainly is not a similar case to the case at bar.

The rule is'not the same where the affidavit is made by an agent or attorney of a plaintiff, as it is where the

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affidavit is made by the assignee of a claim, who is himself the plaintiff. In case the affidavit on attachment is made by an agent or attorney, the law very properly exacts that he should show some knowledge of the subject, and not rest upon the bare statement of the language of section 636 of the Code, that the amount specified is due and owing “ over and above all counterclaims known to him ” or to plaintiff. But where the affidavit is made by the assignee of the claim, the mere statement required by section 636 of the Code is sufficient. See Crowns v. Vail, 51 Hun, 204 .

This is logical and just, for the reason that the law will presume that the owner of the claim having made himself liable for costs, and having given a bond, has knowledge of what he states, and is in all respects on the same footing as his assignor would have been, had he not assigned the claim, but become plaintiff in the action.- A discreet man, proposing to become the assignee of a claim, will make himself familiar with the matters involved in the assignment, before consenting to receive the claim and bring the action. The law presumes every man to act with fair intelligence and reasonable discretion, unless the contrary appears.

If the plaintiff makes the affidavit of his own knowledge, the language of the Code is sufficient, whether the plaintiff be the assignee of the claim or the original owner (see Crowns v. Vail, supra), unless it affirmatively appears that he could not have had any personal knowledge of the matter.

This view is supported by Ruppert v. Haug, supra, where it was held : “ It is enough if the affidavit shows this to the satisfaction of the judge, who receives the application for the warrant, but there must be some evidence. Stuben Co. Bank v. Alberger, 78 N. Y., 252 . The words of the statute need not be followed, although they furnish the safest formula.”

In that case, there was no evidence of the non-existence

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of a counter-claim, inasmuch as the affidavit was silent in that regard; whereas in the case at bar the affidavit supplies the necessary evidence.

For the reasons above indicated, the order appealed from is affirmed, with ten dollars costs and disbursements.

Freedman, P. J., concurred.