Lassen v. Burt

46 Misc. 582 | N.Y. App. Term. | 1905

Scott, J.

The court’s jurisdiction to render judgment at all against defendant rested upon the validity of the attachment, and its validity depended upon whether the necessary jurisdictional facts were stated to justify its issuance. The ground upon which the attachment was applied for was that defendant had departed from the State with intent to defraud his creditors and avoid the service of summons, and kept himself concealed with like intent. Not one evidentiary fact is contained in the affidavit upon which the warrant was issued. The plaintiff swears that defendant has so departed with said intent, but clearly this is merely a statement of his belief, and he does not say upon what such belief was founded. He says that he and his employees have made diligent efforts to find defendant, but he does not show in what those efforts consisted, so that the court could form a judgment whether they were really diligent or not. He swears that his “ employees have been informed that he (defendant) has so departed as above set forth,” but he does not show what his employees were told, or who told them, or'who the employees were that were told, nor does he furnish the affidavits of the employees themselves or of the persons who informed them, or give any reason for not furnishing them. It is- difficult to imagine a more completely insufficient affidavit, and it obviously conferred no jurisdiction upon the justice to issue a warrant. Steuben Co. Bank v. Alberger, 78 N. Y. 252, 258. The attachment itself was irregular and void in that it was not signed by the plaintiff’s attorney as required by section 641, Code of Civil Procedure. MacDonald v. Kieferdorf, 18 N. Y. Supp. 763. And finally the evidence taken upon the inquest failed to show that anything was due to plaintiff. It consisted merely of the contract, and plaintiff’s conclusion that something was due, but- included no proof of performance by plaintiff. The jurisdictional defect, however, is fatal to the judgment and to the maintenance of the action.

Judgment reversed and complaint dismissed, with costs to appellant in this court and the court, below.

O’Gorman and Blanghard, JJ., concur.

Judgment reversed and complaint dismissed, with costs to appellant in this court and the courts below.