
    SUPREME COURT.
    Russell Murray agt. William H. Hankin, Jr.
    
      Attachment — Sufficiency of affitda/cit for.
    
    An attachment granted upon the affidavit of an agent of plaintiff, who alleged that the sum demanded was due over and above all counterclaims, discounts and set-offs existing in favor of the defendant to the knowledge of deponent, was properly set aside upon application of a subsequent attaching creditor.
    The affidavit would have been sufficient if the allegation of the agent had been that the sum demanded was due over and above all counter-claims, discounts and set-offs existing in favor of the defendant to the knowledge of plaintiff (Davis, P. J., dissenting).
    
    
      First Department, General Term,
    
    
      May, 1883.
    
      Before Davis, P. J., Brady and Daniels, JJ.
    
    Appeal from an order denying motion to vacate an attachment made by a subsequent attaching creditor.
    
      Preston Stevenson, for appellant.
    
      L. J. Morrison, for respondent.
   Brady, J.

— The affidavit upon which the attachment was granted in this case was made by the agent of the plaintiff, who alleges that he is personally acquainted with the facts and circumstances which he proceeds to set forth. The claim consists of a promissory note, payable to the order of the plaintiff, and a sale of merchandise made at a date subsequent to that of the note, and of merchandise also sold to various persons who have assigned their demands to the plaintiff. The agent then states that the plaintiff is justly entitled to recover for these various claims the sum named “ over and above all counter-claims, discounts and set-offs existing in favor of the defendant to the knowledge of deponent.”

The subsequent attaching creditor who made the motion resulting in this appeal assails the affidavit because it fails to comply with the statute in not averring that the plaintiff is entitled to recover the sum demanded over and above all counter-claims known to him, and this objection seems to be well taken.

Although the Code only requires the necessary facts to be shown by affidavit to the satisfaction of the judge granting the attachment, and although the affidavit may, therefore, undoubtedly be made by an agent who has the necessary knowledge to make the required allegations, nevertheless when the allegations are made they must be in conformity to the statute, and particularly in a case where the attachment is granted upon a variety of claims in part originating with the plaintiff, and in part acquired by him by assignment. The statute requires, among other things, that the plaintiff shall show either by his own affidavit, or by that of somebody in his behalf conversant with the facts, that there are no counterclaims known to him, i. e'., known to him, the plaintiff.

The asseveration by the agent that there were no counterclaims known to him might be made with very great propriety, and hence the necessity of the information which is exacted by the statute non constat, but that in this case there was a counter-claim to some one or more of the numerous items set.forth of which the plaintiff had knowledge, but of which his agent had no knowledge. If the allegation of the agent in his affidavit had been that the sum demanded was due over and above all counter-claims, discounts and set-offs existing in favor of the defendant to the knowledge of the plaintiff the affidavits would have been sufficient. But the allegation is that it was due over and above all counter-claims, discounts and set-offs existing in favor of the defendant to the “ knowledge of the deponent,” i. e., to the knowledge of the agent as already suggested.

Inasmuch as in this case an attachment was demanded for a sum of money which rested partly upon merchandise sold by the plaintiff' to the defendant, and partly upon claims assigned to him, the affidavits should perhaps show that as to each of the items there was no counter-claim existing in favor of the defendant to the knowledge of the plaintiff, notwithstanding that the affidavit on which the attachment is granted may be made by the plaintiff’s agent or attorney in fact.

The objection taken is not to a mere irregularity which the defendant might be regarded as having waived, because he made no objection to it so far as the court is advised. It is to a jurisdictional objection (Donnell agt. Williams, 21 Hun, 216; Ruppert agt. Haug, 87 N. Y., 141).

For these reasons the order made by the court below must be reversed and the motion granted, with ten dollars costs and disbursements of this appeal.

Daniels, J., concurs.

Davis, P. J. (dissenting).

— I do not think a subsequently attaching creditor ought to be allowed to succeed upon a point of this kind. The defendant in the action by not taking such an objection waives it. The junior attaching creditor ought to be required to show that there were counter-claims or offsets which might be interposed.. One- creditor should not be allowed to trip up the heel of another prior in diligence without being able to assert some more substantial objection than this. The agent evidently had better, or at least as good, knowledge of the condition of things between the plaintiff and the defendant as the plaintiff' himself. His affidavit on this point presents facts upon which the judge in granting the attachment might find the fact asserted to be substantially proved.

I am of opinion that the court below rightfully disposed of the motion.  