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extend the statutory period." Voluntary appearance of defendant obviates necessity of service,72 but if made after the thirty days will not revive the attachment.73 Further publication of summons is unnecessary, after defendant appears. The court has no power to extend the thirty day period.75

14. Second application for an attachment.] Where the first attachment has been vacated for defects in the papers upon the application, a second application upon new papers may be granted. Such an application is not a renewal of the prior motion, requiring leave to be obtained.76

15. Reinstatement.]—When a judgment for defendant has been reversed upon appeal, and the annulment of the attachment has been suspended by plaintiff giving security to effect a stay," the attachment is reinstated upon such reversal.78

FORM No. 828.

Affidavit to obtain attachment - General Form.79

[Title of court and action.]

[Venue.]

A. B., being duly sworn, says:

I. That he is the plaintiff [or, one of the plaintiffs] above named [who at all the times hereinafter mentioned were and still are copartners under the firm name of

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carrying on

or, that at all the times mentioned herein

71 Ludwig v. Blum, 18 N. Y. Supp. 69; Kelly v. Countryman, 15 Hun, 97. 72 Catlen v. Ricketts, 91 N. Y. 668.

73 Blossom v. Estes, 84 N. Y. 614.

74 Tuller v. Beck, 108 N. Y. 355, 20 Abb. N. C. 425.

75 Jones v. Fuchs, 106 App. Div. 260, 94 N. Y. Supp. 57.

76 Selser Bros. Co. v. Potter Produce Co., 80 Hun, 554, 30 N. Y. Supp. 527, aff'd, 144 N. Y. 646; Ladenburg v. Com. Bank, 5 App. Div. 219, 39 N. Y. Supp. 119, 2 Anno. Cas. 397. Plaintiff may abandon the first warrant and obtain a second one if not for mere purpose of vexation. Mojarrieta v. Saenz, 80 N. Y. 547.

77 N. Y. Code Civ. Pro., § 3343, subd. 12.

78 Henry v. Salisbury, 33 App. Div. 293, 53 N. Y. Supp. 834. Pending the determination of the appeal, a motion to vacate the attachment will not lie. Friede v. Weissethanner, 27 Misc. 518, 58 N. Y. Supp. 336, 29 Civ. Pro. Rep. 187.

79 As to peculiar allegations necessary besides these, in obtaining an attachment in the N. Y. City Court, see N. Y. Code Civ. Pro., § 3169; particularly as to debtor's age, Wentzler v.

Ross, 59 How. Pr. 397; Doctor v.
Schnepp, 2 How. Pr. (N. S.) 52.

See, generally, as to rules applicable to test the sufficiency of the affidavits, paragraphs 8-12, pp. 1181

deponent was and now is the president of the plaintiffs otherwise identify deponent, and state his relation to the case. ]81

or

[In case of action on contract, state cause of action, as thus:] II. That Y. Z., the above-named defendant, is justly and truly indebted to said plaintiff in the sum of dollars upon the following facts, to wit: [here state the facts constituting the cause of action, not by way of recital, but positively, see Forms under Arrest, and in Volume I, p. 602; if the damages are unliquidated, it is necessary to allege facts which establish the measure of damage and show the sum which plaintiff is entitled to recover; and, if the complaint is relied on in support of the application, may say: as appears by the complaint herein, verified on the day of 19 and if any of its allegations material to the application are not positive, add: all of the allegations of which (numbered to ) are true to the knowledge

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of this deponent or annex corroborating affidavits.]84

80 The affiant should either show he was such officer at the time the transactions occurred, or swear to personal knowledge thereof. Anthony & Co. v. Fox, 53 App. Div. 200, 65 N. Y. Supp. 806, and cases cited.

81 Plaintiff's residence is immaterial, in an action in Supreme Court between individuals. Hawkins V. Pakas, 39 App. Div. 506, 57 N. Y. Supp. 317. If plaintiff is a foreign corporation and the facts show it is doing business in the State, allege that it has obtained authority. Luckens Iron, etc., Co. v. Payne, 13 App. Div. 11, 43 N. Y. Supp. 376. paragraph III of this Form, when defendant is a foreign corporation.

Also see

82 Insufficient if stated only by way of recital. Manton v. Poole, 4 Hun, 638, 67 Barb. 330. No cause of action is sufficiently shown when affidavit states that an indebtedness exists for goods sold and delivered at an agreed price which defendant agreed to pay. Chambers, etc., Co. v. Roberts, 2 App. Div. 181, 37 N. Y. Supp. 855. S. P., Wessels v. Boettcher, 69 Hun, 306, aff'd, 138 N. Y. 654. Where the action is on a quantum meruit, and no facts are alleged as to the nature or extent of the services, or their value, no attachment should be granted. Southwell v. Kingsland, 85 App. Div.

83

384, 83 N. Y. Supp. 356. See, also, Am. Audit Co. v. Indust. Fed. of Am., 80 App. Div. 544, 80 N. Y. Supp. 788; Levinson v. Briggs, 95 App. Div. 94, 88 N. Y. Supp. 507.

83 Bloomingdale r. Cook, 35 App. Div. 360, 54 N. Y. Supp. 924; Haskell v. Osborn, 33 App. Div. 127, 53 N. Y. Supp. 361; Duryea, etc., Co. v. Rayner, 11 Misc. 294, 32 N. Y. Supp. 247; Delafield v. Armsby Co., 58 App. Div. 432, 68 N. Y. Supp. 998; Roth v. Am. Piano Mfg. Co., 35 Misc. 509, 71 N. Y. Supp. 1080. See paragraph 11, p. 1185.

84 This makes the complaint competent evidence, though its allegations are on information and belief. Edick v. Green, 38 Hun, 202; Lanier v. City Bank, 9 Civ. Pro. Rep. 161.

[Or may refer to and support verified complaint annexed, thus:]

And the grounds thereof appear in the verified complaint in this action, hereto annexed, all of the statements contained in which are true to the knowledge of this deponent, except those therein stated to be alleged on information and belief, and as to those, the sources of his information and the grounds of his belief are as follows [here indicate them, and the reason why the informant's affidavit is not given, or give it if practicable, and refer to it as annexed].

And that this [or, said] plaintiff is [or, said plaintiffs are] justly entitled to recover from the said defendant [the amount of damages mentioned in the complaint, to wit] the sum of dollars, [and interest thereon from the

85

day of

19 1, over and above all counter-claims known to him [the plaintiff].86

day of

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[Or when the action is for tort, state cause of action, as thus:] II. That on or about the 19 at Y. Z., the defendant above-named, wrongfully took from the plaintiff, who was the absolute owner thereof and converted to his own use [etc., stating the tort positively; see Forms 830-833 (below); or, if complaint is relied on, refer to it and corroborate it, if necessary, as above], as deponent is informed and believes ; that the sources of his information are as follows [stating them]. [Also state facts from which the amount of plaintiff's actual damage will appear.]87

[If the ground of attachment is non-residence.]88

in

III. That the defendant is not a resident of this State, but resides at [as deponent is informed by O. P., who is the agent and business correspondent at in this State, of said defendant, and whose affidavit is hereto annexed; that said defendant is and for

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years last past has resided

aforesaid, and his name appears in the directory of for the current year, as a resident at No.

85 Variance between the attachment and the complaint, in respect to the amount, held fatal where the statute required the writ to state the amount "in conformity with the complaint." Bowers v. London Bank, 3 Utah, 417, 4 Pac. Rep. 225.

86 See paragraph 12, p. 1185. supra. While it is usual to make this allegation in the words of the statute (§ 636), it is not essential. Ruppert v. Haug, 87 N. Y. 141; Rickerson r. Bunker, 26 Misc. 383, 56 N. Y. Supp. 202.

Plaintiff, suing on an assigned claim, need not negative the existence of counterclaims against his assignor. Crowns v. Vail, 51 Hun, 204, 4 N. Y. Supp. 325.

street

The papers are fatally defective unless, in an action based upon breach of contract, this allegation, as to a sum due over all counterclaims known is contained in the affidavits. Thorington v. Mesick, 101 N. Y. 5; Buell v. Van Camp, 119 id. 160.

87 See paragraph 11, p. 1185, supra. Austrian Co. v. Wright, 43 Misc. 616, 88 N. Y. Supp. 142.

88 The word "residence," as used in Code Civ. Pro., § 636, means the abode or place where one actually lives, and not one's legal domicile. If the defendant is living outside of the State, his intention to return, and his proof that he has not obtained a legal domicile elsewhere, are immaterial. Hanover Nat. Bank v. Stebbins, 69 Hun, 308, 23 N. Y. Supp. 529.

89

therein.] If the action is on tort and did not arise within the State, add: that plaintiff is a resident of the State of New York.

90

[Or, absence from State.] That the defendant is an adult, and has been continuously absent from the State of New York for more than six months next before the granting of the order of publication of the summons against him on the day of 19 a certified copy whereof is hereunto annexed, marked A, and said defendant has not made a designation of a person upon whom to serve a summons upon him, as appears by the certificate of the clerk of the county of hereunto an

nexed.91

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[Add facts showing defendant's continuous absence and circumstances showing how showing how deponent acquired knowledge thereof.]

[Or, absconding of debtor.]

III. That the defendant is a resident of this State, to wit, of ; but said defendant cannot, after due diligence, be found within this State. That, as this deponent believes, the defendant has departed from this State to in the State of

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or keeps himself concealed within this State, with intent to defraud his creditors or to avoid the service of a summons and the grounds of his belief are as follows [here set out

89 If letters or similar documents are relied on for information, anncx and refer to copies. Even cable dispatches, and similar means, may be held sufficient.

A positive averment of defendant's non-residence, made on personal knowledge, may be insufficient in the absence of any facts being shown from which it can be inferred that affiant had knowledge. James v. Signell, 60 App. Div. 75, 69 N. Y. Supp. 680; Beckermann v. Chambers, 47 Misc.

289.

Where one of the plaintiffs made the affidavit, and it appeared that personal instructions from defendant had been received, held, that affiant's personal knowledge would be inferred. Hayden . Mullins, 76 App. Div. 69, 78 N. Y. Supp. 553; Cole v. Smith, 84 App. Div. 500, 82 N. Y. Supp. 982.

A positive averment of non-residence is sufficient, although the actual residence is stated on information and belief, without disclosing source. Steele v. Raphael, 13 N. Y. Supp. 664,

37 St. Rep. 623; Everett r. Park, 88 Hun, 368, 34 N. Y. Supp. 827.

An allegation of non-residence of defendant in an action by an assignee of the claims should show the source of his knowledge. Herman r. Bailey, 20 Misc. 94, 45 N. Y. Supp. 88.

90 An attachment will issue in an action on contract by a non-resident plaintiff against a non-resident defendant, although the cause of action arose outside of the State. Bridges v. Ware, 110 App. Div. 106.

91 Ennis . Untermeyer, 93 App. Div. 375, 87 N. Y. Supp. 695.

92 An allegation that defendant avoids service is insufficient. Golligen v. Groten, 18 Misc. 428, 42 N. Y. Supp. 22. Statements made by persons not shown to be connected with defendant are ineffective. Haskell v. Osborn. 33 App. Div. 127. 53 N. Y. Supp. 361, 6 Anno. Cas. 87.

As to what circumstances show concealment to avoid service, Genin v. Tompkins, 12 Barb. 265, aff'g 1 Code Rep. (N. S.) 12; Wallach v. Sippilli,

in detail the facts and circumstances which show that the defendant has done so, and that diligent inquiries have been made.

[Or, fraudulent removal or disposition of property.]

94

III. That the defendant, as deponent is informed and believes, has removed [or, is about to remove] his property from the State with intent to defraud his creditors.

65 How. Pr. 501, and volume I of this work, pp. 658, 659, etc.

93 For instance thus: That the said defendant has lately been engaged in converting his property into money, and has sold the goods in his store [or, his stock and farming utensils] for a less price than their real value, and has sold off his household furniture, and has been busily engaged in collecting in all debts and money owing to him; and that he left his family on Friday last, stating to deponent and others that he was going to the city of New York to purchase goods; that since that time he has not returned to his said residence; that deponent has inquired of his wife where said defendant had gone, and when he would return, and was told that he had gone to New York city, and would be back in a day or two; that deponent has been informed by M. N., of that he saw the said defendant on Monday last at Buffalo, and that said defendant informed said M. N. that he was then going to the State of [Wisconsin], and intended to purchase a tract of land in that State, and after he was located he should send for him family [annex, and refer to affidavit of informant].

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For other Forms of allegation adapted to differing cases, see volume I, pp. 658, 672, 674, etc.

It is not enough to allege that defendant is about to dispose of his property and leave the State. Hertz r. Stuart, 3 Wkly. Dig. 332. Nor that he has absconded. Hewitt v. Terry, 56 Mich. 591, 23 N. W. Rep. 326. Nor that he has left the State, with intent to defraud creditors. Van Camp v. Searle, 79 Hun, 134, 29 N. Y. Supp. 757, 24 Civ. Pro. Rep. 16, aff'd, 147 N. Y. 150, 2 Anno. Cas. 351; Lassen

v. Burt, 46 Misc. 582, 92 N. Y. Supp. 796.

There must be something to show intent to defraud creditors or avoid service. Ringler Co. v. Newman, 33 Misc. 653, 68 N. Y. Supp. 871;. Franke v. Havens, 102 App. Div. 67, 92 N. Y. Supp. 377.

The absconding, etc., of one partner is enough to sustain attachment against his interest, at suit of a firm creditor. Buckingham v. Swezey, 25 Hun, 84. But not against the property of both partners. Bogart v. Dart, 25 Hun, 395.

Simply leaving the State, but without taking his property, does not establish an intent to defraud. Doheny v. Worden, 75 App. Div. 47, 77 N. Y. Supp. 959. Nor does a similar intent to leave the State. Tocci v. Gianvicchio, 48 Misc. 351.

94 It is not always practicable, nor is it essential, to state whether the disposal has been made or is about to be made. But an allegation in the alternative is proper, if the facts subsequently stated are appropriate to sustain an alternative inference; or, the allegation may couple both statements with evidence that each allegation is true as to part of the prop erty. Paragraph 10, pp. 1183, 1184, supra; Rickerson v. Bunker, 26 Misc. 383, 56 N. Y. Supp. 202; Van Loon v. Lyons, 61 N. Y. 22; McCraw v. Welch, 2 Col. T. 284; Parsons v. Stockbridge, 42 Ind. 121.

The contrary was held in Schatzman v. Strump (Hamilton, O., C. P.), 7 Cinn. L. B. 334, where the alternative allegation was merely in the words of the statute, without evidence in detail [citing 1 Handy, 48, and Drake on Att., 11].

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