9 N.Y.S. 361 | N.Y. Sup. Ct. | 1890
Two individuals were sued with this defendant in this action, and as to them the attachment was discharged on account of the failure of the affidavit to set forth a cause of action against them, but the same relief was denied to the company. The affidavit, so far as it was directed to the ■disclosure of a cause of action, chiefly consists of general statements made by the receiver himself, on information and belief. He does not appear to have had personal knowledge of any of the occurrences mentioned by him, but his statements have been made upon what appeared to him to be the effect of the books and papers of the company, without inserting in the affidavit items or statements which of themselves would appear to maintain his inferences or conclusions. The affidavit certainly was not drawn with that degree of care that the importance of the case required should have been observed; for the evidences, if they in fact existed, upon which the receiver made his statements, should have been inserted in the affidavit, so far at least as to show the terms of the agreement upon which the action has been brought. But that has not been done; and instead of doing it it has been stated that the company, for whose effects the plaintiff has been appointed receiver, agreed to advance money to the defendants, or to the Aeby Company, amounting to the sum of $100,000, for which that company would manufacture and deliver to the company represented by the plaintiff watches and watch movements, specified and designated in the agreement, and at the times therein mentioned, without any statement being made what those terms were agreed to be, if the agreement contained any stipulation on that subject. It is further added that the company represented by the plaintiff did advance or loan money to the defendants on account of watches and watch movements, delivered and to be delivered to the company, for which the plaintiff was appointed receiver, and that an additional sum of $24,650.63 was also paid on account of watches and watch movements delivered and to be delivered by the Aeby Company. What may have been agreed to be done by the Aeby Company, in the way of
The further statements, concerning the cause of action contained in the affidavit, are still more inferential; for they are restricted to general declarations of the amount remaining due from the defendants to the company represented by the plaintiff, no part of which has been paid. What should have been done was to have presented a statement of the facts, from w'hieh it could be seen by the perusal of the affidavit that a cause of action did exist in favor of the plaintiff as receiver of the company for which he had been appointed. Pride v. Railroad Co., 4 N. Y. Supp. 15; Smith v. Davis, 29 Hun, 306; Straw Board Co. v. Inman, 5 N. Y. Supp. 888.
What the affidavit should have been made to contain was a statement of so much of the agreement as would disclose the obligation created by it, on the part of this as well as the other defendants, and from that, if the facts would-warrant the conclusion, it could then be seen that a breach of the agreement or a default had taken place, and the extent of the relief the plaintiff had become entitled to by reason of their default. There was an entire failure to. comply with this requirement, and the affidavit was left in such a condition that it cannot be seen that the plaintiff at the time when the action was commenced was entitled to recover anything whatever against either of the defendants. Besides that, its material averments were made upon information- and belief, which is nota proper foundation for an attachment, or any other order affecting the rights or property of the defendant. Bank v. Alberger, 78 N. Y. 252. And this defect has not been supplied by the statement made in the affidavit that the plaintiff’s knowledge and belief had been derived from books, papers, agreements, and accounts of the parties to the action, in his-possession, and from knowledge of the affairs of the company of which he is receiver, and its relations to and with the defendants, acquired while he was in its employ as book-keeper for 14 months before his appointment as receiver. Whether what came under his observation in this manner supported the statements made by him no otherwise appears than by his own conclusions from these books and papers, and his knowledge of the affairs of the company while he was book-keeper. The affidavit throughout has been made upon inferences, without any disclosure of the facts, if they existed, tending to support the inferences. It was so deficient in this respect as to present no
The office of an affidavit is to present to the court the evidence from which conclusions of fact may be drawn, and in this respect differs from a complaint, whose office it is to set forth conclusions of fact from which a legal conclusion is to be drawn.
Brady, J., concurs.
