8 N.Y.S. 520 | N.Y. Sup. Ct. | 1890
It would be undoubtedly true that, if the conclusions sworn to by the person who made the affidavit upon which the attachment in this case was granted had evidence to support them, the attachment would have been properly granted. The office of an affidavit is to set forth the evidence, from which the court may draw conclusions of fact, differing in this respect radically from a complaint, which' should only set forth conclusions of fact, and not the evidence of the correctness of these conclusions. The affidavit in question states that on or about the 5th of October. 1889, with intent and design of defrauding creditors, the defendant Virtue purported to sell, assign, and transfer to the defendant Loucheim, for a nominal consideration, all his right, title, and interest in the entire stock, assets, and property and business of the firm of Loucheim & Co., of which he was a partner. This allegation is simply a conclusion of tile affiant, without there appearing in the affidavit a particle of evidence to support it. It is claimed that because the allegation is made positively, apparently upon the knowledge of the affiant, the court is bound to act upon it. We do not think that this is the rule. Upon the contrary, where, from the situation of the parties, the presumption is that the affiant has not personal knowledge of the facts alleged, it is the duty of the court to reject the allegation, unless the affiant sets forth the facts and circumstances showing why he has personal knowledge. Tim v. Smith, 93 Y. Y. 91. The situation of the president of the plaintiff, and his relations to the defendants, were not such as that he would be likely to have personal knowledge of the transactions taking place between the defendants; and if he
