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not had, pursue the rules stated in paragraph 6 of Article III of this chapter, on INJUNCTIONS.
If one, whose affidavit is desired, refuses to make affidavit, he may be compelled to do so,35 but plaintiff is not required to take this course, 34 and may, if he prefer, state the facts upon information and belief, but he must disclose the source, 37 and must add the reason why the affidavit of his informant is not presented.38 In short, if the affidavits of the persons who give the information on which the plaintiff desires to proceed cannot be obtained, from the peculiar circumstances of the case, those circumstances must be stated, with all the grounds of suspicion, so as to satisfy the judge that the facts exist on which the attachment is sought, and that the plaintiff has produced the best evidence in his power to establish them.39
The plaintiff's papers are required to satisfy the judge; even if the affiant assumes to speak as of his own personal knowledge, if the nature of the case is such that the matters of which he speaks cannot be presumed to be within his knowledge, the affidavit must also show how his knowledge was acquired.40
35 See page 106 of Vol. I, and For ms Nos. 53–59; Allen v. Mayer, 73 N. Y. 1.
36 Bennett v. Edwards, 27 Hun, 352, 15 Wkly. Dig. 250.
37 James v. Richardson, 39 Hun, 399; First Nat. Bank v. Wallace, 4 App. Div. 382, 38 N. Y. Supp. 851; Hunt v. Robinson, 52 App. Div. 539, 65 N. Y. Supp. 386.
38 Yates v. North, 44 N. Y. 271; James v. Richardson, 39 Hun, 399; Farley v. Shoemaker, 17 N. Y. St. Rep. 205. A statement that the third person is a friend of defendant, to whom defendant had said he was going to make an assignment, does not excuse a showing of request and refusal. Abrams 0. Levine, 90 Hun, 566, 35 N. Y. Supp. 881.
Where the informant is a near relative of defendant, the reason for nonproduction sufficiently appears. Nat. Bank of Commerce v. Whiteman Paper, etc., Co., 21 N. Y. Supp. 748, aff'd, 138 N. Y. 636.
39 Merch. Nat. Bank v. Col. Spinning Co., 21 App. Div. 383, 47 N. Y. Supp. 442; Lewis v. Tindel-Morris Co., 109 App. Div. 509, 96 N. Y. Supp. 576. The plaintiff is not even required to produce the best evidence, when other competent evidence is presented sufficient to prove the facts. Hanson v. Marcus, 8 App. Div. 318, 40 N. Y. Supp. 951 (affidavit of agent as to counterclaims known to plaintiff sufficient when agent had transacted all the business with defendant).
40 Lehmaier v. Buchner, 14 App. Div. 263, 43 N. Y. Supp. 438, 4 Anno. Cas. 82; Wallace 1. Baring, 21 App. Div. 477, 48 V, Y. Supp. 692; Tucker v. Goodsell Co., 14 App. Div. 89, 43 N. Y. Supp. 402.
It is presumed, in the absence of any disclosure of his means of knowledge, that the plaintiff's attorney has no personal knowledge of the facts alleged in his affidavit concerning his client's cause of action; and although his affidavit is framed so as to allege upon personal knowledge the court will consider the facts to be stated on information and belief, and will not consider the affidavit in the absence of a disclosure of tho sources of the information.
In all cases it is essential that the affiant's information appear to have been competently derived. 41
If affidavits already used on a previous application are relied on as part of the proof, it is better to have them re-sworn to; 42 but if this is not practicable, it is proper to annex sworn copies; and, if the originals are not in possession of the plaintiff, to refer to where they may be found on file, with the date of filing, if practicable, taking care to produce them upon the application and mention them in the recital in the warrant, unless by reference in a fresh affidavit, and allegation of truth, the copies are in effect made original evidence for the purpose of the second application. <3
Where writings are referred to as the source of the information, the character of the writings and their substance should be set forth.4
10. — mode of allegation — directness and certainty.] — The affidavit (or complaint) must state, not merely by way of recital, 45 but by traversable allegations, facts constituting a cause of action.46 This requirement is jurisdictional.47
An allegation in an affidavit of two facts in the disjunctive, for cxample, " that defendant has disposed, or is about to dispose, of his property,” is insufficient, since it alleges neither the one nor the other fact.48
Crowns v. Vail, 51 Hun, 204, 4 N. Y. Supp. 325. So, as to plaintiff's son (Mclicker v. Campanini, 5 N. Y. Supp. 577), or manager (Shuler v. Birdsall, etc., Co., 17 App. Div. 228, 45 N. Y. Supp. 725), or assignee of claim (Hoorman v. Climax Cycle Co., 9 App. Div. 579, 41 N. Y. Supp. 710; Martin v. Aluminum, etc., Co., 44 App. Div. 412, 60 N. Y. Sup. 1010); or indorsee of note (Foster v. Rogers, 31 Misc. 14, 64 N. Y. Supp. 652).
41 Murphy v. Jack, 142 N. Y. 215 (information by telephone rejected, where affiant did not show he knew he was talking with the plaintiff).
42 Vojarietta 1. Saenz, 80 N. Y. 547.
43 Buell v. Van Camp, 119 N. Y. 160; Hallock t. Van Camp, 55 Hun, 1, 8 N. Y. Supp. 588.
44 McCulloh v. Aeby & Co., 9 N. Y. Supp. 361; Ladenburg v. Com. Bank, 87 Hun, 269, 33 N. Y. Supp. 821; Selser Bros. Co. v. Potter Produce Co., 77 Hun, 313, 28 N. Y. Supp. 428.
45 Manton v. Poole, 4 Hun, 638, 67 Barb. 330 (order refusing to vacate for defect in this respect, reversed).
46 Walts t. Nichols, 32 Hun, 276; Smith r'. Davis, 29 Hun, 306; Pomeroy v. Ricketts, 27 id. 242 (holding that an allegation that defendant was indebted, etc., “ for goods sold and delivered," insufficient because not alleging facts of sale, etc.). See, also, notes to Form No. 828.
47 Jacobs v. Hogan, 85 N. Y. 243.
48 Cronin r. (rooks, 143 N. Y. 452; Arnot v. Wright, 55 Hun, 561, 9 N. Y. Supp. 15; Dintruff r. Tuthill, 62 Hun, 591, 17 N. Y. Supp. 556; Lowther v. Lowther, 110 App. Div. 122. It will be sufficient, however, if the affidavits disclose circumstances upon which either alternative may properly be rested. 40 N. Y. Code Civ. Pro., § 3343, subd. 11; Gray v. Sheridan Co., 5 Monthly L. Bul. 22.
A sworn complaint being now an affidavit,49 its production is a sufficient compliance as to facts therein positively alleged. And. it is not essential for the purpose of jurisdiction that the evidence to establish those facts be stated; for allegations sufficient to constitute a cause of action, positively verified, make a prima facic case.50 An exception to this rule is justly recognized in the case of those facts, such as the intent of the defendants, including malice, want of probable cause, and the like — as to which another person can only have an inferential knowledge. 51
In general, where the statute calls for evidence of a fact, which is disconnected with any intent upon the part of the defendant, a simple statement of that fact by a person having knowledge thereof is sufficient.52 If, however, any fact thus relied on as constituting, either a part of the cause of action, or of the grounds of attachment, is upon the line, sometimes difficult to draw, between matters of facts and conclusions of law, details should be stated to substantiate it. And in all cases evidence is desirable, for an allegation may suffice to give jurisdiction, and yet fail to satisfy the mind of the judge.
Where the code or the settled practice sanctions the use in pleading of a short allegation which does not satisfy the above requirement, it will often be safer to make a fuller and more positive statement in the affidavit. This question arises for instance where the pleader in his complaint alleges performance in the short statutory phrase “ duly performed all the conditions thereof on his part,” or where he sues on an account in the short commonlaw form (still sanctioned, nothwithstanding the general rule of the code), alleging that defendant is indebted to plaintiff upon an account for goods sold and delivered.53
50 But an indirect method of allegation, permitted in a pleading met by demurrer, where all inferences possible are drawn to its support (see Allen v. Patterson, 7 N. Y. 476), may be entirely inadequate to show a cause of action for the purpose of supporting an attachment. See Chambers, etc., Co. v. Roberts, 2 App. Div. 181, 37 N. Y. Supp. 855.
51 Lanier v. City Bank of Houston, 9 Civ. Pro. Rep. (Browne) 161, and cases cited.
52 Kneel. on Att., 369.
53 To allege an account current, without alleging the character of the items, whether plaintiff is suing upon an agreed price or the reasonable value, is insufficient. Wessels v. Boettcher, 69 Hun, 306, 23 N. Y. Supp. 480, aff'd, 138 N. Y. 654.
11. — amount.] — In the case of an action on contract the amount due must be alleged, 54 positively.55
It is not essential, but it is safest to follow in this the words of the statute, “ that the plaintiff is entitled to recover [a sum stated] over and above all counter-claims,” etc. 56
The amount should be accurately stated, although for good cause shown the court may sustain an excessive attachment by reducing the amount.57
If unliquidated, the facts necessary to fix the amount of damages must be alleged.58 If this be done, it is no objection that the damages are unliquidated.59
If the action is for a personal injury, the warrant should specify such sums as the judge in his discretion determines, in view of the damages likely to be recovered.
12. — counter claims.] — The language of the statute that “ if the action is to recover damages for breach of a contract, the affidavit must show that the plaintiff is entitled to recover a sum stated therein, over and above all counter-claims known to him," requires an affidavit affording evidence that, so far as plaintiff knows, no counter-claim exists which will further reduce the claim; and although it is not necessary that the allegation be made by the plaintiff, nor that it follow the words of the statute,62 the
54 Tootle v. Smith, 34 Kans. 27.
Where the affidavit was sufficient in this respect; held, that the fact that the complaint demanded sale of collaterals, and judgment for deficiency did not vitiate. Hamilton v. Penney, 29 Hun, 265.
05 Black r. Scanlan, 48 Ga. 12; Dean r. Bell, 1 Y. Y. Monthly L. Bul. 42; Clowser v. Hall, so Va. 864, 9 Va. L. J. 688; Garner v. White, 14 Ohio St. 192 (holding affidavits to belief insufficient).
56 Allegation that defendant is indebted to plaintiff in a sum stated, and that the latter is justly entitled to recover said sum, held insufficient. Ruppert t. Haug, 87 N. Y. 141.
57 Sulzbacher 1. Cawthra, 14 Misc. 545, 36 N. Y. Supp. 8, aff’d, 148 N. Y. 755.
38 Golden Gate Concentrator Co. v. Jackson, 13 Abb. N. C. 476; Ackroyd r. Ackroyd, 11 Abb. Pr. 345, 20 How. Pr. 93. If wrong measure of damages only is established, the attachment must be vacated. Smith v. Swenson, 26 Misc. 151, 56 X, Y. Supp. 783; Delafield 1. Armsby Co., 62 App. Div. 262, 71 N. Y. Supp. 14; Chazy Co. v. Deely, 88 App. Div. 150, 84 N. Y. Supp. 396.
59 ['nited States r'. Graff, 4 Hun, 634, 67 Barb. 304.
60 Rouge v. Rouge, 14 Misc. 421, 35 N. Y. Supp. 836, 2 Anno. Cas. 376, 25 Civ. Pro. Rep. 102, aff’d, 15 Misc. 36.
61 N. Y. Code Civ. Pro., & 636, subd. 1.
62 Ruppert r. Haug, 87 N. Y. 141, 1 Civ. Pro. Rep. 411, 62 How. Pr. 364; Lamkin r. Douglass, 27 Hun, 517 (though it is the safest formula, as the affidavit must otherwise contain their exact equivalent).
allegation must be either by the plaintiff or one of several coplaintiffs,63 or by an agent who is shown by the affidavit to have stood in such a relation to the transaction — as, for instance, where all the dealings of the parties have been had through him64 — or to stand in such a relation to the accounts between the parties that he may be regarded as a proper witness, either to the fact that plaintiff is not aware of any counter-claim, or to the fact that there is no counter-claim.
The attorney for the plaintiff cannot effectively make such allegation, unless he shows personal knowledge, or swears that he obtained the information from plaintiff and explains the non-production of plaintiff's affidavit. 66
An assignee need only aver that there are no counter-claims known to him. 67
An executive officer of a corporation plaintiff may properly allege that the sum stated is due over all counter-claims known to him.68
13. Service of summons.] — The summons must be personally served within thirty days after the granting of the warrant, or substituted service without the State made or publication of the summons begun within the same period.69 Service on one of several joint debtors is sufficient.70 Defendant's death will not
63 Donnell v. Williams, 21 Hun, 216, 59 How. Pr. 68.
64 Frankel 1. Hays, 20 Wkly. Dig. 417; Mallary v. Allen, 15 Abb. N. C. 338: Gribbon 1. Back, 35 Hun, 541; Hanson t. Marcus, 8 App. Div. 318, 40 N. Y. Supp. 951. In which case his affidavit that there are no counterclaims known to him (the agent) is sufficient. Washburn v. Carthage Nat. Bank, 86 Hun, 393, aff’d, 155 N. Y. 690; Steele v. Gilmore Mfg. Co., 77 App. Div. 199, 78 N. Y. Supp. 1078.
65 National Park Bank of N. Y. v. Whitmore, 40 Hun, 499 (assistant cashier); Lee v. Le Compagnie Universelle, 2 N. Y. St. Rep. 612 (president of corporation in hands of receiver).
66 Weehawken Wharf Co. 1. Knick. Coal Co., 24 Misc. 683, 53 N. Y. Supp. 982; Mitchell v. Anderson, 32 Misc. 13, 66 N. Y. Supp. 118.
67 Crowns v. Vail, 51 Hun, 204, 4 N. Y. Supp. 325; Selser Bros. Co. v. Potter Produce Co., 80 Hun, 554, 30 N. Y. Supp. 527, aff'd, 144 N. Y. 646.
68 Bliss Co. v. Opera Glass Supply Co., 60 Hun, 438, 15 N. Y. Supp. 6, 21 Civ. Pro. Rep. 136: Man. Nat. Bank r. Hall, 60 Hun, 466, 15 N. Y. Supp. 208. aff'd, 129 N. Y. 663.
69 Code Civ. Pro., § 628. The attachment falls unless service is made as the statute requires. Un. Dist. Co. 1. Ruser, 16 N. Y. Supp. 51, 21 Civ. Pro. Rer. 293; Ross 1. Ingersoll, 53 App. Div. 86, 65 N. Y. Supp. 753; Peetsch r. Sommers, 31 App. Div. 255, 53 N. Y. Supp. 438; Blossom v. Estes, 84 N. Y. 614. If the service made is defective, the attachment will be vacated. Kieley 1. Mfg. Co., 147 N. Y. 620. Publication in both designated papers must be shown to have been begun within the thirty days. Peetsch v. Sommers, supra.
70 Yerkes v. McFadden, 141 N. Y. 136.