
    Manufacturers' Nat. Bank v. Hall et al.
    
    
      (Supreme Court, General Term, First Department.
    
    June 26, 1891.)
    1. Attachment—Affidavit of. Attorney— Sufficiency.
    An affidavit made by an attorney of a foreign attaching creditor that a certain sum is due by.defendants over and above all counter-claims known to plaintiff, based on a telegram from plaintiff’s home attorney directing the attachment to be made out, showing no knowledge, and containing no statement, as to the non-existence of counter-claims, is insufficient, under Code Civil Proc. N. Y. § 636, which provides “that the affidavit must show that the plaintiff is entitled to recover a sum stated therein over and above all counter-claims known to him. ”
    2. Same—Knowledge of Affiant—President of Corporation.
    The affidavit of plaintiff’s president, an attaching creditor, that a certain sum is due the company by defendants for goods sold, over and above all' counter-claims known to plaintiff, if it states that affiant was plaintiff’s president at the time the goods were sold, so that his personal knowledge of non-existing counter-claims will appear, is sufficient ptima facie evidence to warrant the issuing of the attachment under said section; otherwise it is fatally defective. Van Brunt, P. J., .dissenting.
    Appeal from special term, Hew York county.
    Action by the Manufacturers’ Hational Bank against Dudley Hall and another. From a judgment for plaintiff, defendants appeal. Code Civil Proc. H. Y. § 636, provides: “If the action is to recover damages for a 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.”
    Argued before Van Brunt, P. J., and Barrett and Patterson, JJ.
    
      Root & Clark, (Joseph Kunzmann, of counsel,) for appellants. George M. Pinney, Jr., for respondent.
   Van Brunt, P. J.

The attachment of the plaintiff was obtained against the defendants upon the ground that they were non-residents, and was founded upon the affidavit of one George M. Pinney, Jr., who stated that he was the attorney for the plaintiff in this action; that it was a foreign corporation, located in Massachusetts, and that the action was brought to recover the amount of a certain promissory note of $5,000, which was due and unpaid; and that said sum was due from the defendants to the plaintiff over and above all counter-claims known to the plaintiff. The affiant further stated that he had made the statements in the affidavit upon information received by him contained in two telegrams, which were annexed to his affidavit; that they were received from one William A. Gaston, who was an attorney and counselor at law, and a member of a firm doing business at Boston, Mass. The first telegram was as follows: “Has Dudley Hall and Compahy, one fifty-two Front street, a stock of goods, and can you get an attachment on it if we send on their note? We fear they may assign here. Answer. I will send particulars. Wm. A. Gaston.” The second telegram was as follows: “Assignment made here. Attach debtor’s property at one ninety-two Cherry street, New York, public warehouse, on note overdue five thousand dollars, owned by Manufacturers’ National Bank. Debtors are Dudley Hall and Dudley C. Hall, both of Medford. Will write to-night. Wm. A. Gaston.” It is perfectly apparent that neither Gaston, the author of these telegrams, nor the attorney who made this affidavit, had any knowledge whatever as to whether there were any counter-claims existing in favor of the defendants against the plaintiff. Unless the requiiements of the Code are to be treated as a farce, it is quite clear, where it is apparent that the parties have no personal knowl* edge of the transactions, that such an affidavit, coming from such á source, simply because the affiant swears to the fact, does not authorize the court to act upon the affidavit; and, if this were the only question involved in the appeal, there would be no difficulty as to its disposition. But it is urged upon the part of the plaintiff that, if the plaintiff’s papers are bad, the appellants are in an equally unfortunate condition. The affidavit upon which their attachment was obtained was made by Mr. John F. Pupke, who swears that he is the president of the plaintiff, a corporation organized under the laws of the state of New Jersey, the affidavit being made on the 10th of March, 1891. It then alleges the sale of goods in February, 1891, by the plaintiff to the defendants, which was to be paid for in cash, that no part thereof has been paid, and the plaintiff is entitled to recover the amount thereof over and above all counter-claims known to the defendant or to the plaintiff. The affiant nowhere states that he had any knowledge of the financial affairs of the appellant corporation, or that he had any connection with its active business, or that he ever saw its books or accounts, or that he had any such relation to the business of the corporation as would justify the inference of knowledge as to its pecuniary affairs. We do not know, even from the papers, as to whether he was connected with the company at the time of the transactions alleged in the affidavit. As was said in the case of Buhl v. Ball, 41 Hun, 64, this is a summary provisional remedy to take from a debtor the custody of property, and to support the remedy the provisions of the statute must be substantially complied with; referring to the provision that it must be shown by affidavit to the satisfaction of the judge granting the attachment that the plaintiff is entitled to recover the sum stated therein over and above all counter-claims known to him. Such facts must be presented to the court that they can see, from the necessary connection of the affiant with the business of the corporation applying for the attachment, that he is likely to know whereof he is making a verification. In the case of the cashier of a bank, it has been held that, because of his position, he is presumed to be acquainted with the financial affairs of the corporation of which he is an officer. But, in the case of a trading corporation, with nothing to show what the duties of the president are, or that he has any knowledge whatever of the fiscal affairs of the corporation, or of its business transactions, we think the court cannot assume, simply from the fact of his being the president, that he lias any personal knowledge in respect to the transaction whereof he is speaking; and, if he has no personal knowledge, then the rule is clear that he must set out the sources of his information, so that the court may see whether his belief is justified. Upon the whole case, therefore, we are of opinion that the order appealed from should be affirmed, with $10 costs and disbursements.

Barrett, J.

I concur unreservedly with the presiding justice as to the first attachment. As to the junior attachment, however, I am unable to eoncurin the views expressed with regard to the affidavit of Mr. Pupke, the president of the company. 1 think that the affidavit of the president of a* corporation, wherein he swears positively to the sale and delivery of goods by the corporation to a defendant, is sufficient prima facie to warrant the granting of an attachment. It imports personal knowledge of the facts sworn to,— there being no intimation in the affidavit that it is based upon any element of information,—and the president’s position as the chief executive officer of the company certainly justifies the inference that, when he swears positively, with regard to a corporate transaction, he speaks of his own personal knowledge. I concur in the result, however, for the reason that Mr. Pupke does not state that he was president of the company at the time the goods in question were sold. I agree that a person who was not president at the time of the corporate transaction presumptively speaks of it upon information, and that the presumption of personal knowledge only arises when he swears positively to a ■corporate transaction occurring at a time when he makes it clear that he was president.

Patterson, J.

I also agree with the presiding justice respecting the first attachment, but I do not concur in what is said in his opinion respecting the subsequent one, so far as it relates to the competency of an officer of the corporation to make the affidavit. In that respect I am in accord with the views expressed by Mr. Justice Barrett. But the affidavit of Mr. Pupke is defective and insuffipient in substance, in that it does not state his relation to the corporation at the time the goods were sold, and I therefore agree that the order must be affirmed.  