Hawkins v. Pakas

| N.Y. App. Div. | Jul 1, 1899

Patterson, J.:

This is an appeal from an order vacating an attachment upon the papers on which it was granted. The decision below was made upon the assumption that a jurisdictional fact was not disclosed on the application for the warrant, in that there was no averment in the papers that, the plaintiff was a resident of the State of New York. As this is an action between individuals, such an averment was not necessary. The cases cited by the learned justice below were actions against foreign corporations. As the jurisdiction over such corporations is limited, it has been held that to authorize attachments against them the jurisdictional facts must be disclosed.

But the order appealed from is sought to be supported on other grounds, one of which is that it was not made to appear that the plaintiff was the owner of the claim sued upon. The plaintiff is the assignee of that claim. A written instrument of assignment was among the papers on which the warrant was issued, and that instrument is executed by Henry H. Bowman, trustee of the Over-man Wheel Company. It is true that an instrument so signed would not be sufficient evidence of an assignment made by a corporation, but the claim assigned was an individual claim of Bowman’s. The .allegation of the complaint is, that one Henry H. Bowman, doing business as the Overman Wheel Company, etc., sold and delivered to the defendant the goods, for the value of which the action was brought, and the assignment was a transfer, therefore, of that claim, the origin of which is set out in the complaint.

It is also urged that there was not sufficient proof before the justice of essential facts to authorize him to grant the warrant. The affidavit upon which that warrant was granted was made by the plaintiff, and as to the existence of the cause of action the averments are upon information and belief. The affiant states as follows : “ The sources of affiant’s information and belief are a copy of the account and the assignment and affidavit of Henry H. Bowman hereto attached and made a part hereof.” The paper referred to is an assignment of the claim, but in it there is also matter deposed to, intended to be in the nature of a deposition, the whole being authenticated by a notary public of Hampden county, in the Commonwealth of Massachusetts. The deposition is not signed by the deponent, but that is immaterial, because the document could not be used at all in the courts of this State as an affidavit. (Turtle v. Turtle, 31 A.D. 49" court="N.Y. App. Div." date_filed="1898-07-01" href="https://app.midpage.ai/document/turtle-v-turtle-5184516?utm_source=webapp" opinion_id="5184516">31 App. Div. 49.) Notwithstanding its insufficiency as an affidavit, it was properly before the court as the source from which the plaintiff derived his information and belief. It is not necessary to the validity of an attachment that the individual upon whose affidavit the application for the warrant is made shall personally know all the facts required to be stated. He may state them on information and belief, but that information and belief must be competently derived.. (Murphy v. Jack, 142 N.Y. 215" court="NY" date_filed="1894-04-17" href="https://app.midpage.ai/document/murphy-v--jack-3605813?utm_source=webapp" opinion_id="3605813">142 N. Y. 215.) The contents of the instrument which the plaintiff annexed to his affidavit satisfied the court that his statements concerning the facts which constituted the cause of action were based upon information he had a right to consider well founded, and which was sufficient to enable the court to pass upon the probable truth of such statements and the authenticity of the facts.

The order should be reversed, with ten dollars costs and disbursements, and the motion to vacate the attachment denied, with ten dollars costs.

Van Brunt, P. J., Ingraham and McLaughlin, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.