Hill v. Knickerbocker Electric Light & Power Co., 14 N.Y.S. 517

Hill v. Knickerbocker Electric Light & Power Co.

14 N.Y.S. 517 | N.Y. Sup. Ct. | 1891

Daniels, J.

The attachment has been issued for two different demands, ■one owing to the plaintiff directly, and the other acquired by assignment. They have been supported by the plaintiff’s affidavit, and sufficiently so, too, ■as to the demand owing to him personally; but that part of the affidavit devoted to the assigned demand is objected to as insufficient, for the reason that it has not been stated that the facts mentioned in it were or could have been known to him. They are generally stated as facts within the plaintiff’s *518knowledge, and in no sense -depending on his information. But in support of the conclusion that they were within his knowledge is the circumstance that the plaintiff was in the employment of the defendant during the time when the assigned demand mainly accrued, he having left the employment on the 29th day of November, 1890, and the assignor on the 6th of the following month of December. The services in each instance are stated to have commenced on'the same day; and, while they were rendered in different pursuits, still there is reason for concluding that the plaintiff had in this manner obtained that knowledge concerning the rendition of the services of the assignor as enabled him to make the statements concerning it which are contained in his affidavit; and when that may be assumed to be the state of the facts the positive affidavit of the assignee may be reasonably accepted and acted upon as the foundation for an attachment. Bank, v. Voisin, 44 Hun, 85, and Crowns v. Vail, 4 N. Y. Supp. 324, support this ruling. The affidavit is defective in omitting to state to whom the assignment was made. But the attachment forms no part of the papers on the appeal, and it cannot, therefore, be said that it was issued alone upon the affidavit. The complaint was sworn to on the same day, and may be assumed to have been also before the justice at the time when he subscribed the warrant of attachment; and that avers the assignment to have been to the plaintiff, which supplies this omission in the affidavit itself. The attachment has in this manner been sufficiently supported, and the order should be affirmed, with $10 costs and the disbursements on the appeal.