41 N.Y.S. 837 | N.Y. Sup. Ct. | 1896
The motion to set aside the attachment in this action, being made by a junior attaching creditor, must be founded upon a strict legal right, or it cannot be granted. It is not made for
The theory of the verification of affidavits is that the courts may see that the affirmations of fact are made by a person who, from the situation, has a presumed knowledge of the events, or who gives such a reasonable statement of the sources of information as to justify the court, judging from the ex parte affidavit alone, in coinciding with the reasonableness of the belief. Such an object is not served by the affidavit in this case and, for aught that appears, except for the bare fact of an assignment of the claim, the affidavit might have been made, as to the two principal facts to be alleged, by a stranger from the street. ■
This view is directly sustained by the General Term of the First Department in Crowns v. Vail, 51 Hun, 204. The counsel for the plaintiff here has an erroneous view of what was decided in Crowns v. Vail, as evidenced by the brief submitted by him in this action and which would have given this court a misleading view of that case were it not for an examination .of it. The
In that case a junior attaching creditor moved to vacate the attachment. The first qiiestion argued was whether the affidavit for the attachment was sufficient, and it was directly held that the affidavit of an attorney,' though stating facts positively, could not be presumed to have been made upon positive knowledge, and that it must appear affirmatively, or by fair inference, that the affiant had personal knowledge of the facts stated by him; that the affidavit in question was entirely insufficient, as the facts alleged must be presumed not to have been within the knowledge of the attornéy and the sources of information and grounds of his belief should have been stated.
A second question, however, arose in the case. The plaintiff then attacked the standing of the junior attaching creditor bn the ground that he did not have a valid lien by attachment, and so could not raise the question. This necessitated an investigation into the strength of his moving papers for an attachment. He suéd as assignee, but stated that he had possession of .the drafts sued upon and personal knowledge of them, and the only criticism made upon his affidavit,, apparently, \yas that he did not show a presumed knowledge sufficient to justify him in saying that no counterclaims or offsets existed against the assignors in favor of the defendants. The court very clearly pointed out that this: objection was untenable, because a different statement, is required in regard to counterclaims from that necessary in regard to the cause of action and the residence. The court only requires an averment that no counterclaims or offsets hnoim to the plaintiff existed, and that statement was fully made in the affidavit of the junior attaching creditor. Hence the affidavit was held to be sufficient.
Both by the authority of the opinion in Crowns v. Vail and the weight of its satisfactory' reasoning, is that case decisive of the present. Justice Pryor also, at Special Term, in the present year,
The motion is granted.
Motion granted.