5 N.Y.S. 831 | N.Y. Sup. Ct. | 1889
The affiant made the sale under which the alleged indebtedness arose, and had personal knowledge thereof. In that respect the case differs from the cases cited by the counsel for the execution creditor. The criticism that the affiant, while swearing to a sale, does not state in his affidavit that the goods were delivered, I do not regard as of force. In ordinary parlance, when we speak of a “sale of goods,” the term imports a delivery; and it seems to me that it would be sacrificing substance to form to hold the affidavit in this ease insufficient on the ground that no delivery of the goods sold was averred. I think, also, that it appears from the affidavit of Adams that his position was such that knowledge as to the condition of the accounts between the plaintiffs and defendants would be implied. He was not, as in the case of Watch Co. v. Payne, ante, 68, the secretary of the plaintiff, whose position would not naturally be one likely to put the affiant in possession of knowledge of the accounts between the parties, but he was the agent and manager of the plaintiffs in the city of New York, having charge of their business there and managing it, and, as the affidavit states, represented the plaintiffs in the transactions referred to therein. The case, therefore, comes within the class referred to in Buhl v. Ball, 41 Hun, 65, by Bradley, J., who in delivering the opinion of the court says: “When the relation of the agent making the affidavit appears to have been such as to enable him to have the requisite knowledge to state a fact, his affirmation of it maybe taken as proof upon which the officer granting the warrant of attachment may judicially act, and it will support it,” The motion to vacate the attachment will, therefore be denied, with costs.