15 N.Y.S. 6 | N.Y. Sup. Ct. | 1891
Lead Opinion
The sole ground upon which a reversal is here claimed is-that the affidavits upon which the attachment was granted do not show a right to recover the sum sued for “over and above all counter-claims” known to the plaintiff. The cause of action is fully established by the affidavit of Mr. Porter, who was the plaintiff’s secretary and treasurer at the times mentioned in the complaint, and who had personal knowledge of all the matters in question. Mr. Porter states that the plaintiff is entitled to recover from the defendant the unpaid balance claimed in the complaint, “over and above-all counter-claims existing in favor of the defendant and against the plaintiff, known to the deponent.” The present secretary of the plaintiff, Mr. Copp, makes a similar statement with regard to counter-claims. The appellant’s-objection to these statements is that, as Mr. Porter does not appear at the present-time to be an officer of the plaintiff, he cannot know whether any counter-claims have arisen in favor of the defendant since he ceased to be an officer; and that, as Mr. Copp has no personal knowledge of the transactions set forth in the complaint, he cannot know anything on the subject. . These objections are not well taken. Mr. Copp may not have had any personal connection with the original sale and delivery of the goods, and yet he may be perfectly competent to make the requisite affidavit with regard to the existence or non-existence of claims against the company. This is not a case where the principal may have knowledge of a claim existing against himself, of which his agent is entirely ignorant. Here the principal, as such, can have no knowledge. It would, for instance, be absurd for one of its officers to state that the corporation was entitled to recover the claim sued upon over and above all counter-claims known to it. When, therefore, one of the executive officers of a corporation, whose duties are such that he would naturally know of the existence of claims against the company, states that there are no such
Patterson, J., concurs.
Code Civil Proc. N. Y. § 636, subd. 1.
Dissenting Opinion
I dissent. I do not think that the affidavit was a compliance with the provisions of the Code. All that the case of Buell v. Van Camp decides is that such an affidavit conferred jurisdiction upon the court below, and as, in such a case, that court has no power of review, it affirmed the order; but the general term may review, and should review, even where