
    Harold P. Brewster, Resp’t, v. Benjamin Van Camp, App’lt.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed December 30, 1889.)
    
    1. Attachment—Motion to vacate.
    Upon a motion to vacate an attachment under the Code the question is not one of the jurisdiction of the officer who granted it, but upon the facts presented the court is to determine whether the attachment ought to issue, and this is so when the motion is founded upon the alleged insufficiency of the affidavits upon which the order for the attachment is made.
    2. Same.
    Mere inconvenience is not a sufficient reason for not producing the affidavits of persons who have personal knowledge of the facts relied upon to make a case for an attachment.
    Appeal from an order of the Monroe special term, denying the defendant’s motion to vacate an attachment against property founded upon the same papers upon which the same was granted.
    
      Charles A. Keeler, for app’lt; John Cunneen, for resp’t.
   Barker, P. J.

The application for the attachment was made on the 12th day of June, 1888, and was granted by a justice of this court Up to the 9th day of the same month the defendant was engaged in business in Orleans county and was supposed to be solvent. The attachment was applied for and allowed upon the ground that the defendant had departed from the state with an intent to cheat and defraud his creditors, and to avoid the service of a summons.

On the day preceding this application other creditors of the defendant applied for and procured attachments against his property on the same grounds, which were allowed by the county judge of Orleans county. The affidavits read before that officer were retained in his possession and the originals were not produced to the justice who granted the attachment in this action. One of the grounds on which the motion to vacate was founded was a failure of proof to make a case for the granting of an attachment upon either of the grounds mentioned in the moving papers.

We think the motion should have been granted for the reason that the proof was insufficient to establish either of the grounds upon which the application was founded. Upon a motion to vacate an attachment under the Code, the question is not one of jurisdiction of the officer who granted it, but upon the facts presented the court is to determine whether the attachment ought to issue, and this is so when the motion is founded upon the alleged insufficiency of the affidavits upon which the order for the attachment was made, and a decision upon such a motion by the special term is reviewable upon the merits in this court. Allen v. Meyer, 73 N. Y., 1.

The rule, as stated by the learned counsel for the respondent, that if the affidavits stated facts sufficient to give the officer jurisdiction, and to call upon him to exercise his judgment, a motion to vacate founded upon the same papers as those upon which the attachment was granted will be denied, has no application to this court on a motion to vacate an attachment. Such is thé rule in the court of appeals when reviewing an order of this court sustaining an attachment. If the attachment is granted in a case not authorized, or if there is an entire absence of facts proved justifying the granting of the same, the case will present a question of law, and the court of appeals would have jurisdiction to interfere and correct the legal error. Allen v. Meyer, supra.

In that tribunal, if the affidavit shows any fact, however slight, which tends to show the existence of the statutory conditions, the judge granting the attachment acquires jurisdiction, and it will not interfere, but affirm the order. Steuben County Bk. v. Alberger, 78 N. Y., 252.

In Mr. Bumsey’s work on Practice, vol. 1, p. 556, it is stated “that if the motion to vacate the attachment is made upon the papers upon which it was granted, the warrant will only be ■vacated where the court has no jurisdiction to grant it, or where the evidence utterly fails to show some fact which is essential to authorize the granting of the warrant,” and cites Allen v. Meyer, and Steuben County Bk. v. Alberger, supra, in support of the rule as stated. If this rule is quoted as indicating the limited jurisdiction of the court of appeals over the question, then it is entirely correct, but if the learned author intended to state the rule which prevails in this court when reviewing an order granting an attachment, it is not supported by the authorities. But it is quite evident that the rule, as stated, when read with the context, applies only to the jurisdiction of the court of appeals and the rule which prevails in that tribunal.

The plaintiff’s own affidavit, which was read on the application for the attachment, does not state any fact in support of the charge that the defendant has departed from the state with intent to defraud his creditors or to avoid the service of a summons. The supporting affidavits are wholly insufficient, as neither of the affiants states any fact within his own knowledge from which it can be fairly, inferred that the defendant has departed from the state for the purpose alleged. The statements contained in Mr. Cunneen’s affidavit are based upon statements made to him by others, but he does not state that he believes such information to be true. Nor does it appear from any of the affidavits that any good reason existed why the persons from whom the information was derived were absent, or that their depositions could hot be obtained. The reasons assigned for not procuring affidavits of those persons is, that “ it would be exceedingly inconvenient to get them and would occasion delays which are undesirable in a race between creditors for preference.” And yet it does appear by the affidavit of Mr. Cunneen, the attorney for the plaintiff in this action, that the affidavits from which he derived part of the information, as stated in his said affidavit, were used in cases in which he was attorney for other parties in procuring attachments against this defendant, and that he resided in the same village with the county judge who granted the attachments in those cases. Mere inconvenience is not a sufficient reason for not producing the affidavits of persons who have personal knowledge of the facts relied upon to establish a case for the granting of an attachment. Yates v. North, 44 N. Y., 271; Bennett v. Edwards, 27 Hun, 352; Whitney v. Hirsch, 39 id., 325.

The same criticisms are applicable to the affidavits of Kelsey and Jerome, copies of which were also read in support of the plaintiff’s application. Copies of affidavits which have been used in another case may be read in support of the application as indicating the source from which the plaintiff derived his information when it is made to appear that an original affidavit cannot be procured and the plaintiff makes the further affidavit that he believes the statements contained in the affidavit of which he presents a copy are true. Bennett v. Edwards, supra.

But it will be observed that neither Kelsey or Jerome in their affidavits state that they believe that the information which they derived from others is true. In short, it may be stated that none cf the facts related in any of the affidavits which were relied upon to prove the charge made against the defendant were within the personal knowledge of either of the affiants, and none of them were willing to state that they believed that the statements of fact made by them founded upon information derived from others were true, nor any sxifficient excuse made for not presenting the affidavits of the persons from whom they derived such information.

The plaintiff insists as a ground for denying the defendant’s motion that it did not appear by the moving papers that there had not been an actual application of the attached property, or the proceeds thereof, to the payment of a judgment recovered in the action, and that by the provisions of § 682 the attachment could not be vacated after such an application had been made.

The record discloses nothing on this subject, and if, in fact, a judgment had been recovered in the action and the attached property applied towards its satisfaction we think it was for the plaintiff to disclose the fact as a defense to the motion.

The order of the special term reversed and the motion to vacate the attachment granted, with ten dollars costs of this appeal and disbursements.

Dwight, J., concurs; Macomber, J., not voting.  