198 A.D. 369 | N.Y. App. Div. | 1921
The motion to vacate was made upon the ground that the papers upon which the attachment was issued were insufficient in law; that they did not contain proof of the cause of action, nor proof of the allegation that the defendant is a foreign
The learned justice at Special Term in his memorandum said: “ The proof of the cause of action is insufficient. The affiant must show facts from which the inference may be drawn that he has knowledge of the facts he swears to. It is not like supplying proof of damage, which may be allowed by supplemental affidavits under section 768 of the Code of Civil Procedure. The defect is jurisdictional.”
We held in Dexter & Carpenter, Inc., v. Lake & Export C. Corp. (196 App. Div. 766, 771): “Although neither the complaint nor the affidavit sets forth the contract or the facts in detail with respect to the making thereof, they both sufficiently charge, by way of conclusions of fact, the making and breach of the contract and the plaintiff’s damages, to confer jurisdiction upon the justice to issue the warrant of attachment.”
The learned counsel for the respondent does not urge upon this appeal that the original papers upon which the attachment was granted did not confer jurisdiction upon the court issuing the warrant. It is argued, however, that the allegations appearing in all the papers are insufficient to show that a cause of action exists against the defendant by reason of the absence of evidentiary facts. In this connection, it is to be observed that there is a marked distinction between an affidavit on personal knowledge made by an individual plaintiff or by an officer of a plaintiff corporation and one made by a third person who would not necessarily be deemed familiar with the facts of his own knowledge. In the latter case, the affiant must state the sources of his information from which the court may gather whether the matters asserted by him are justified. (Anthony & Co. v. Fox, 53 App. Div. 200; Barstow Stove Co. v. Darling, 81 Hun, 564; National Shoe & Leather Bank v. Brown, 33 App. Div. 629.)
In the instant case the complaint is verified by the president
We are of the opinion that the facts set forth in the complaint and affidavits upon which the warrant was granted sufficiently allege a cause of action in favor of the plaintiff. (Anthony & Co. v. Fox, supra; California Packing Corp. v. Kelly S. & D. Co., 228 N. Y. 49.) In the last-mentioned case the court in its opinion significantly said: “ Meticulous particularity in pleading the facts which must be shown by way of evidence to establish a cause of action is neither necessary nor proper. It bewilders the real issue and furnishes no safeguard against imposition or oppression.”
The order appealed from should be reversed, with ten dollars
Clarke, P. J., Dowling, Smith and Page, JJ., concur.
Order reversed, with ten dollars costs and disbursements, motion denied, with ten dollars costs, and warrant of attachment reinstated.