
    MURPHY v. JACK.
    
      N. Y. Court of Appeals;
    
    
      April, 1894.
    
      Attachme7itsl\ An affidavit for an attachment in an action for a liquidated demand for goods sold, upon -the ground that defendants are non-residents, which is made by plaintiff’s attorney upon information and belief, giving plaintiff himself as the source of information, and stating that the means by which affiant derived his information were aconversation with plaintiff (who was in another State) through a long distance telephone, is insufficient to support the attachment where the affidavit does not state that affiant recognized plaintiff’s voice, or show in any satisfactory way that he knew it was plaintiff who was speaking with him.
    
    Appeal from an order of the General Term of the Supreme Court reversing an order of the Special Term which vacated an attachment upon the ground that the papers upon which it was granted were insufficient, and •denied a motion to vacate such attachment.
    Action by Charles S. Murphy against William C. Jack and Millard F. Payne to recover the price of goods sold.
    An attachment was granted upon the ground of defendant’s non-residence upon a complaint verified by plaintiff's attorney because plaintiff was not in this State, but in the State of Massachusetts, and an affidavit made by such attorney upon information and belief, giving plaintiff as the source of his information, and stating that he obtained the information from him by a conversation carried on over a long distance telephone, the affiant being in New York and the plaintiff in Boston.
    
      The Special Term upon motion vacated the attachment because the papers on which it was granted were insufficient.
    
      
      The General Term reversed the order, rendering the following opinions:
    
      
      See note at the end of this case.
    
   Follett, J.

The right to attach property to secure the payment of a debt before recovering a judgment against the alleged debtor is not a common law right, but in this, as in most of the States, it exists by virtue of statutes, the requirements of which, and the procedure prescribed by them, must be substantially complied with by the attaching creditor in order to acquire a valid lien on the debtor’s property. Our Code requires the plaintiff “ to show by affidavit to the satisfaction of the judge granting the same ” (attachment) the necessary facts. The Code does not require that the affidavit shall be made by the plaintiff, nor by any one having personal knowledge of the existence of the facts stated in the affidavit, but an affidavit made by the agen t, or by the attorney of the attaching creditor, averring that the facts required to be shown by section 636 of the Code exist, as the affiant is informed and believes, stating the source of his information and the grounds of his belief, is sufficient to confer jurisdiction on a judge to grant an attachment (Buell v. Van Camp, 119 N. Y. 160; Bennett v. Edwards, 27 Hun, 352; Crowns v. Vail, 51 Id. 204; Kokomo Straw-Board Co. v. Inman, 53 Id. 39; Globe Yarn Mills v. Bilbrough, 2 Misc. 100; Reichenbach v. Spethmann, 5 Mon. L. Bull, 42).

In the case at bar the existence of the facts necessary to confer jurisdiction on the. judge having been shown by affidavit, the question is, ought the judge to have been satisfied by the evidence presented ? When courts and judicial officers are asked to act upon affidavits made on information and belief, they require, as a matter of safety, that the source of the information and the means by which it was communicated be disclosed. If the source of information be a person, it must be one whom the court can see probably had personal knowledge of the facts. communicated and the means by which the communication is made must be one which experience has shown to be usually reliable, and one which a prudent man would employ in a matter of importance to himself.

The source of information in this case was the plaintiff, the person of all others most likely to have personal knowledge of the existence of the debt, its amount and the residence of the debtors. The source of the affiant’s information is the best, and, indeed, it was not questioned by the learned judge at Special Term, nor is it by the learned counsel for the respondents, except it is suggested that some of the information was communicated by the plaintiff’s attorney in Boston, but it is specifically stated in the affidavit that all of the jurisdictional facts were communicated by the plaintiff. But it is said that the means by which the affiant acquired his information is not sufficiently reliable to authorize or support judicial action. The means through which the affiant derived his information was a conversation by a long distance telephone, the plaintiff being in Boston and the affiant in New York.

It has been held that an attachment may be based upon facts reported to the affiant by means of a cablegram (Reichenbach v. Spethmann, supra). In the case last cited an attachment was granted and sustained on information cabled from Europe to the affiant in New York. Certainly, the means would not have been less reliable had the sender and receiver of the cablegram been able personally to have communicated with each other by telegraph and had done so. There was certainly no greater chance for error in communicating the information received by the affiant, in the case at bar, in the manner in which it was communicated, between persons interested in arriving at the exact facts, than there would have been in a communication transmitted either by telegraph or telephone, and written out and delivered in the ordinary way.

We do not think that it will do to hold that judicial action cannot be based on information transmitted by telephone, unless, as it is suggested, the affiant swears that he knew and recognized the voice of the person with whom he communicated. Such identification is impossible in telegraphic communication, and the precaution of repeating dispatches would afford no greater security against deception than the opportunity of personal inquiry and cross-examination over the telephone. There can be no absolute rule by which the sufficiency of evidence to sustain attachments can be determined, and every case must depend largely upon its own facts and somewhat upon the nature of the action, and also between whom the question arises. In the case at bar the cause of action is a liquidated demand arising on the sale of goods. The ground for the attachment is that defendants are non-residents of the State, two simple facts, which, as between the creditor and debtors, we think were established/rms facie by the complaint and affidavit used on granting the writ, and that the burden was cast on the defendants, if they desired relief from the attachment, to rebut the presumption arising from those affidavits, and show affirmatively -either that they were not indebted or that they were not non-residents of'the State.

Had the question arisen between subsequent lienors a -stricter rule might be enforced, but, as between these parties, it seems to us that the plaintiff should not be deprived of his lien unless the defendants overthrow the frima facie case of the plaintiff.

The fact that the plaintiff was without the State, and that the affiant believed that the defendant’s attachable property would be removed from this State before an affidavit could be obtained from the plaintiff, was a sufficient excuse for presenting the affidavit of the attorney instead •of that of the party.

The order should be reversed, with $10 costs and printing disbursements, and the motion denied, with $10 costs, but with leave to the defendant to make a new motion upon affidavits for an order vacating the writ.

Henry D. Hotchkiss and William S. Maddox, for appellants.

Sullivan & Cromwell and Edward B. Hill, for respondent.

O’Brien, J., concurred.

Van Brunt, P. J. [dissenting.]

I cannot concur in the conclusion of- the within opinion. It proceeds upon the assumption that the attorney communicated with the plaintiff by telephone, and received from him the facts necessary to be presented to the court, upon the application for attachment. The attorney did not see the plaintiff, nor did he recognize his voice. Where, then, is there any proof that the plaintiff communicated anything ? In the case of a telegram a record is made. The original dispatch is preserved and accessible; but, in the case of communication by telephone, nothing is left to which any test can be applied by which the accuracy or authenticity of the alleged communication can be determined.

Gray, J.

If the affidavit was insufficient, upon which this attachment was ordered, a question of law is presented and the order of the General Term is undoubtedly reviewable here (Allan v. Meyer, 73 N. Y. 1; Steuben County Bank v. Alberger, 78 Id. 252). In this case the writ was applied for upon statements made upon the information and belief of the deponent, and the question is whether the information concerning the material facts appeared to have been acquired in such a manner as to justify the judge in acting upon it.

Was the source of the information such as the judge could accept as satisfactory ? The affiant, in such cases, is not required to have a personal knowledge of the facts required to be stated ; but it is essential that his information must appear to have been competently derived ; as otherwise the judicial officer, whose action has been invoked, is without jurisdiction to proceed. It is clear-that the attorney in this case obtained his information by a communication made through the telephone upon the morning of the day upon which the complaint and affidavit were sworn to, and that his belief was based upon it, in making his statements concerning the facts constituting the cause of action, the absence of counterclaims, and the non-residence of the defendants. Those were the material facts required to be proved to the satisfaction of the judge, and we do not think that the proof as to the source of the information concerning them was sufficient, for the reason that there was lacking any degree of certainty that the plaintiff himself ever made the communication to the affiant.

There would be no objection to the information having been conveyed through the medium of the telephone, if it had been made to appear that the affiant was acquainted with the plaintiff and recognized his voice, or if it had appeared in some satisfactory way that he knew it was the plaintiff who was speaking with him. None of these facts, however, were averred. There was absolutely nothing upon which the. judge could pass to show that it was the plaintiff who was speaking, and not some undisclosed person who, in the plaintiff’s name, furnished to the attorney the information made use of. The perfection to which the invention of the telephone has been brought has immensely'facilitated the inter-communication of individuals at distant points, and inasmuch as the voice of the speaker is heard, in most, if not in all cases, the identification of the speaker should be possible. • The very facility of communication and of identification permits, and, therefore, imposes a duty upon the party who invokes judicial action upon the strength of information so received, to state his knowledge or his grounds for believing that it actually came from the party required to furnish it.

To authorize an attachment to issue upon the affidavit furnished here was in disregard of the rule which requires that the source of information shall be disclosed in such a way as to enable the' court to decide upon the probable truth of the statements and the authenticity of the jurisdictional facts. Judicial action upon such a source of information as was here disclosed was justified below by analogy with telegraphic communication. The analogy is incomplete. If the information comes through the telephone, it is quite possible to identify the speaker. Then, too, there is not, in the case of a telephonic communication, any record, like the message which, in the case of the use of the telegraph, remains for reference and verification.

For these reasons, as well as for those stated in the opinion of Mr. Justice BARRETT, at special term, and of Mr. Justice Van Brunt, dissenting, at the general term, the order of the general term should be reversed and that of the special term should be affirmed, with costs in all the courts.

All the judges concurred.

Ordered accordingly.

Note on the Competency as Evidence of Communications Received through the Telephone.

The case in the text seems to determine in a satisfactory way the competency of communications by telephone, as evidence for the court on a motion, by affidavits, as distinguished from the competency of such statements as common law evidence on the trial.

It is well settled that a court may in its discretion and within proper limits receive hearsay evidence in affidavits upon a motion, and the chief safeguards are found in requiring oath to belief, and also information as to the sources from which the adverse party can ascertain the truth of the statements for the purpose of counter affidavits.

The following notes of cases show the present state of the authorities on the use of telephone communications as common law evidence on the trial.

Notes of Cases.

Recognition of voice.] Missouri Pacific Railway Co. v. Heidenheimer, 82 Tex. 195. Action against a railroad company for non-delivery of goods. A witness testified that he called up defendant’s-freight office to inquire if the goods in controversy were there, and received a reply that they had been shipped back; that he was accustomed to transact business with defendant’s office, and that he recognized the voice of the person who answered as the voice of one of defendant’s employees, but that he could not remember his name.—Held, that there was sufficient evidence that the person answering was defendant’s agent, to render evidence of his reply competent.

Obermann Brewing Co. v. Adams, 35 Ill. App. 540. Action for price of goods. One of the plaintiffs was permitted to testify, that he called up defendant’s office upon the telephone, and received an affirmative to an . inquiry as to whether a certain person was-authorized to buy for defendant. The witness did not recognize the voice, and did not know with whom he had communicated, —Held, that the admission of such testimony was error, there being-no proof that the person who made the answer had any right to act for defendant.

People v. Ward, 3 N. Y. Crim. 483. Larceny. A witness who recognized defendant’s voice may testify as to a conversation with him through the telephone.

Stepp v. State, 31 Tex. Crim. R. 349; s. c., 20 Southwest Rep. 753. In a prosecution for theft, held, that it was competent for a witness who recognized defendant’s voice, to testify as to his statements made over a telephone.

Presumption from usage ofthe parties.] Rock Island, Peoria Ry. Co. v. Potter, 36 Ill. App. 590. In an action against a railroad company for the death of hogs caused by defendant’s neglect to deliver, —Held, that an answer to a telephone inquiry as to the arrival of the hogs, made at an office where consignees generally got such information from the railroad, was admissible as showing prima facie that the communication came from a servant of defendant.

Responding to telephone number.] Globe Printing Co. v. Stahl, 23 Mo. App. 451. Action for breach of contract. Plaintiff’s bookkeeper as a witness testified that he “ called up by telephone to the general office of the Bell Telephone Co. for defendant’s number, and was by the Central Office connected therewith that the list of the telephone company showed that the defendant had two telephone numbers, and that the witness, to the best of his recollection, called up a certain one of them; that there was an answer from defendant’s number to the telephone call, that witness did not know whose voice it was, but he asked through the telephone if that was the defendant, and the answer was, Yes.”—Held, that the admission of witness’s testimony as to the subsequent conversation had over the telephone on such occasion was proper, upon the principle that those evidentiary matters upon which men may be compelled to act in the ordinary affairs of life, and in the usual transaction of business, ought to be allowed to go to the jury, in cases where they become material to the issues upon the trial.

Presumption of authority of one speaking for customer who has the telephone in his office.~\ Wolfe v. Missouri Pacific Railway Co., 97 Mo. 473, One who places himself in connection with a telephone system through an instrument in his office, thereby invites communications in relation to his business through that channel; and conversations so held are as admissible in evidence as personal interviews by a customer with an unknown clerk in charge of a shop; and the fact that the voice at the telephone was not identified, does not render the conversation inadmissible.

Operator serving like an interpreter,j Sullivan v. Kuykendall, 82 Ky. 483. Action upon a contract. Plaintiff went to a public telephone office, and expressed a wish to communicate with defendant at B. The operator at B, having been called up, sent for defendant. The defendant used the instrument himself, but the operator spoke for plaintiff and told him what defendant said.—Held, that it. was competent for plaintiff to prove by himself and others what the: operator said to him as coming from defendant.

The court say : “ When one using the telephone, if he knows: that he is talking to the operator, he also knows that he is making him his agent to repeat what he is saying to another party; and, in such a case, certainly the statements of the operator are competent, being the declarations of the agent, made during the progress of the’ transaction.”

Oskamp v. Gadsden, Neb. 1892, 52 Northwest R. 718. Defendant called at a public telephone office, and asked the operator to request plaintiff to step to the telephone in their place of business at CK One of the plaintiffs answered the call, but owing to the condition of the atmosphere, the conversation had to be carried on through an operator at an intermediate station.—Held., in an action upon an alleged contract made by such communication, that it was ■competent for defendant to testify as to plaintiff’s answers as repeated to him by the operator.

Identity shown by other evidence,] Davis v. Walter, 70 Iowa, 465. Evidence of an alleged conversation by telephone with one of the ■defendants, is not to be excluded upon the ground that it is not ■shown that the person conversed with was, in fact, one of the defendants, when that fact sufficiently appears by the testimony of another of the defendants.

Impeaching notarial acknowledgment taken through a telephoned] Banning v. Banning, 80 Cal. 271; s. c. 13 Am.St.Rep. 156. Action for partition. Where there was no fraud, the acknowledgment of a married woman, made out by a notary in due form, cannot be impeached by showing that the acknowledgment was taken through a telephone.

(The court disclaims any intention of holding that under any ■circumstances an acknowledgment may be properly taken through .a telephone.)

Rule against hearsay applied.] Wilson ». Coleman, 81 Ga. 297; s. c., 6 S. E. 693. In an action for non-delivery of oats, one of the plaintiffs was allowed, against exception, to testify as to a demand made by his clerk, through the telephone, on defendant for the ■oats, and defendant’s reply as repeated to him by the clerk.-—Held, ■that this was error ; the evidence was merely hearsay.

Morrell v. Koerner-Parker Lumber Co., 51 Mo. App. 592. Telephonic messages which do not purport to come from the opposing party, or one shown to be his agent, are irrelevant and are properly excluded.

Distinguishing Globe Printing Co. v. Stahl, 23 Mo. App. 451.  