King v. King

68 N.Y.S. 1089 | N.Y. App. Div. | 1901

Hirschberg, J.:

A warrant of attachment was granted herein on the 26th day of ^November, 1900, but it did not recite the ground of the attachment as required by section 641 of the Code of .Civil Procedure. A good ground existed as appears by the paper on which the warrant was obtained, viz., that the defendant is a non-resident. On December 7, 1900, the defendant served a notice of motion returnable December twelfth, for an order vacating the warrant on 'the sole ground that the warrant was defective in the particular referred to. Thereafter the plaintiff procured an order requiring the defendant to show -cause why the warrant should not be amended by inserting therein ¡a statement of the ground of the attachment in these words : “ That "the defendant is not a resident of the State of New York, but is a resident of the State of New Jersey.” On the hearing of both motions the court amended the warrant as asked for and denied the motion to vacate. . The appeals from such orders have been argued "here together.

The court had power to amend the warrant. (Stone v. Pratt, 90 Hun, 39, and cases therein cited; Code Civ. Proc. § 723.) The •case of Cronin v. Crooks (76 Hun, 120; affd., 143 N. Y. 352) is not authority to the contrary, for no motion appears to have been made to amend the warrant in that case. Certainly this question ■was not considered.

The appellant insists that the original papers, are defective in .-matters of substance because the complaint does not state a cause •of action, and because material averments are not within the knowl•edge of affiants and. the sources of information and grounds of belief are not stated. In form the action is based on the assignment of a part of a claim, but the plaintiff is one of the beneficiaries •of her father’s will, and as such is entitled to the same share in the ¡subject-matter of the claim as has been assigned to her independently of the assignment. This fact gives authenticity to her sworn .statements which would not apply to a stranger purchasing a cause -of action and whose rights and knowledge thereof would necessarily be inferior. In Risley v. Phenix Bank of City of New York (83 N. Y. 318) it was held that an assignment of a portion of a debt is valid, and in the very recent case of Chambers v. Lancaster (160 N. Y. 342) Chief Judge Parker said (p. 348): “ It has long been ¡settled in this state that a valid assignment of a part of an entire •debt or obligation can be made.” "Whether the plaintiff can success-fully enforce her rights in the action without bringing in the other beneficiaries is not now considered or determined. The complaint -certainly states a good cause of action in favor of the plaintiff and .against the defendant for breach of contract. The papers taken together confer jurisdiction to grant the writ. (Barstow Stove Co. v. Darling, 81 Hun, 564; Hawkins v. Pakas, 39 App. Div. 506; Anthony & Co. v. Fox, 53 id. 200, 203, 204 ; Haebler v. Bernharth, 115 N. Y. 459.)

The orders should be affirmed..

All concurred.

Orders affirmed, with ten dollars costs and disbursements in each case.