21 Misc. 442 | N.Y. App. Term. | 1897
The plaintiff obtained an order for the arrest of" the defendant Kellar and his partner (name unknown), on the-ground that they had converted to their own use the sum of $666.68, which had been remitted them from Hannibal, Missouri,, by the plaintiff’s assignor, John W. Treat, and received by them for the purchase or sale of stocks and grain for the benefit of the-said assignor. The defendant Sam Kellar, who was arrested under the order, moved to vacate it on the ground that the affidavit and
As the plaintiff is the assignee of the person dealing with the defendant, it is not to be assumed that he had personal knowledge of the transactions between those parties. His affidavit, therefore,, proceeds to show from what his knowledge was derived. It states that he is in the brokerage business (in New York); “that he is thoroughly familiar with all the facts out of which this cause of action arises, having in his office' all the receipts; statements; accounts and other papers rendered to- deponent’s assignor; that he is familiar with the business and business methods of Sam Kellar & Co., the E. S. Dean Co., W. F. Connor & Co., and Talcott & Co., with which said Sam Kellar was connected, and that he has had access to some of the books of Sam Kellar & Co., and knows of his own knowledge that the accounts therein, as well as those sub-' mitted to plaintiff’s assignor, so far as they relate to the above action, are fake; and that the defendant, the above-named Sam Kellar, or Sam Kellar & Co., did not purchase the stocks therein credited at the prices charged this plaintiff, and is informed and believes the fact to be that such stocks were never purchased by said defendants or anyone else for them on behalf of this plaintiff’s assignor.”
There is no statement that the papers in the deponent’s possession show the receipt by defendant from Treat of the sums which it is now sought to recover back; on the contrary, another clause of the affidavit expressly states that in the statements rendered to Treat by defendants no credit has been given for the portion of the money misappropriated for which this suit is brought. "The
As much strictness is required in regard to the proof necessary to obtain an order of arrest as in the case of an attachment, and such an affidavit as "is here presented would have been manifestly insufficient, if made the basis for an application for the latter remedy.
Not only does the affiant swear that the statement rendered to his assignor, which is in his possession, gives no credit whatever for a portion of the money misappropriated, thus leaving it wholly undisclosed as to how he obtained his information, but he fails to state what portion of the money defendants have failed to credit, whether much or little of the sum claimed in this action. Nor is the general allegation of misappropriation as positive as at first seems from the quotation above made. The affiant states that the accounts submitted to the plaintiff’s assignor are false, and that the defendants did not purchase the stocks that are therein credited at the prices “ charged to the plaintiff.” H the affiant meant the prices charged to his assignor, he does not say so. No prices were charged to the plaintiff for the dealings were wholly with his assignor. This particular expression may have been inadvertent, but it leaves a loophole for escape, if the allegation were false, But, waiving this manifest failure to connect the alleged false accounts with the Treat accounts, the affiant goes on immediately to qualify his positive statement by averment “ on information and belief that said stocks were never purchased by the defendants or anyone else for them on behalf of the plaintiff’s assignor.”
It is not stated that this information is derived from such of the books of the defendants as he had seen (he states that he has had access to some of the defendants’ books only), or from his
The general allegation that the “ deponent - knows from his own ■experience in the brokerage business, and from a thorough investigation of the methods of business of Sam Kellar & Co., and from the facts and evidence in this cáse in deponent’s possession, that deponent’s assignor was defrauded and cheated out of the sum of $666.68, and that there are many thousands of dollars of claims of a similar nature to the one sued upon herein, affords no ground for the arrest, inasmuch as the facts and evidence referred to are not disclosed,' so that the court may judge whether the affiant’s conclusions therefrom are justified or not. Thompson v. Best (above).
The order appealed from is reversed, with costs, and the motion to vacate the order of arrest is granted, with $10 -costs.
McAdam and Bischoff, JJ., concur.
Order reversed, with costs, and motion granted,'with $10 costs.