| N.Y. Sup. Ct. | May 15, 1891
Lead Opinion
I cannot concur in the conclusion arrived at by Mr. Justice Lawrence, that the order appealed from should be affirmed. It is undoubtedly true that the papers upon which the plaintiff obtained his warrant of attachment disclose no cause of action, as stated in the opinion of Mr. Justice Lawrence, but it would appear that the papers upon which the moving party, the National Broadway Bank, obtained its attachment were equally defective. It appears from the warrant that it was obtained upon an affidavit made by the cashier of the National Broadway Bank, in which the allegation simply is that the plaintiff is a domestic corporation, and has a just cause of action against the defendant for injury to personal property by reason of the fraud of defendant in procuring moneys on six forged and fraudulent promissory notes issued in form to the defendant, but fraudulently forged, made, and used by the defendant, and transferred by him for value to the plaintiff, whereby the plaintiff parted with moneys, and was defrauded in the sum of $21,800, in which' sum the defendant is justly indebted to the plaintiff over and above all counter-claims known to the plaintiff. These áre allegations of simple conclusions of law, and not allegations of fact showing that a cause of action existed. It further does not appear that the affiant could have had any personal knowledge as to whether the notes in question were forged or not, and, without any evidence to support the assertion, the ■conclusion that the notes were forged is sworn to. This is wholly insufficient to support the attachment, as has been held in the case of National Broadway Bank against the Same Defendant, 14 N. Y. S. 529, (decided herewith.) It is true that in the case cited there was an attempt to establish the fact that the ■complaint was before the court on the granting of this attachment; but there is nothing in the papers presented upon this appeal to show that such complaint was before the court, even though, with such complaint before the court, the ■defects in the affidavit in question would have been remedied. Now, it cannot be that where a party seeks as a subsequent lienor to vacate a prior attachment, and his papers are as defective in establishing the lien as are the papers of the party against whom he moves, he can succeed in his motion. There is another objection to the maintenance of the motion, and that is that, even if the attachment of the bank was properly issued, there is nothing to show that it had ever been levied upon the property of the defendant therein. It is true that it is said that the deputy-sheriff having charge of the warrant of attachment has stated certain things in respect to the levying of the attachment; but in the case cited above the same language was considered, and a mere al
Dissenting Opinion
(dissenting.) In this case the plaintiff obtained an attachment against the defendant’s property on the 24th day of October, 1890, upon an affidavit in which be states: (1) That he is entitled to recover from the defendant the sum of $12,500, over and above all counter-claims known to-the plaintiff, and upon one of the causes of action mentioned in section 635 of the Code of Civil Procedure, and particularly set forth in subdivision 2 of this affidavit. (2) That on or about the 20th of September, 1890, Peter W.. Gallaudet and others were engaged in business as note brokers in the city of' New York under the firm name of P. W. Gallaudet & Co., and at the same date, and ever since, one John M. Cornell was engaged in business at said city as iron manufacturer, under the name of J. B. & J. M. Cornell. That at the date last mentioned said defendant, Stephen T. Barker, delivered to-said P. W. Gallaudet & Co. three certain promissory notes, all bearing date September 20,1890, and purporting to be made by said J. B. & J. M. Cornell, payable to the order of Barker & Co. in manner following, viz.: One note for $4,600, due in four months; one for $4,000, due in five months; and one for $3,500, due in six months,—said periods being reckoned from the date of said notes. That ail of said notes were indorsed by Barker & Co., which was the name under which said Stephen T. Barker was transacting business, and said
Concurrence Opinion
(concurring.) The affidavit of Mr. what he was informed by the deputy-sheriff had been done in the way of attaching the property of the defendant in the two stores, supplied no legal evidence that such was the fact. Information of that description is not proof. Neither does the statement of the same person that a notice of the attachment had been filed in the action in the clerk’s office prove that any real estate had been attached under either attachment. To make service of an attachment on real estate the law requires that there shall be filed with the clerk a notice of the attachment, stating the names of the parties to tjie action, the amount of the plaintiff’s claim as stated in the warrant, and a description of the particular property levied upon, which must be subscribed by the plaintiff’s attorney, adding his office address, and be recorded and indexed by the clerk in the same book, in like manner, as a notice of the pendency of an action. Code Civil Proc. § 649, subd. 1. And the affidavit wholly fails to prove a compliance with-this provision. This motion depended upon a matter of strict right between the moving and the preceding attaching creditor. In the absence of that right, established by proof, the earlier attachment cannot be avoided. It was not so-maintained, for the affidavit failed to prove that the attachment of the bank had been levied upon either personal or real property. There was no legal foundation for the motion, and I agree that the order should be reversed, and the motion denied.