
    N. Dain’s Sons Co., Plaintiff, v. Thomas McNally Co., Defendant.
    (Supreme Court, Westchester Special Term,
    November, 1909.)
    Attachment — Affidavit to obtain attachment — Sufficiency of affidavit — In action against foreign corporation.
    An affidavit of an officer of plaintiff that defendant is a foreign corporation, without giving the source of affiant’s knowledge or showing facts justifying him in making the averment upon personal knowledge, is insufficient for the foundation of an attachment.
    An affidavit upon which a warrant of attachment has been issued may not be amended by supplying facts that were essential to the court’s exercise of jurisdiction in the first instance and which the affidavit did not contain.
    Motion to vacate attachment against a foreign corporation granted upon an affidavit of an officer of plaintiff, averring “ that the defendant, the Thomas McNally Company, is a foreign corporation created, by and under the laws of the State of Pennsylvania.”
    Franklin Couch, for motion.
    Nathan P. Bushnell, opposed.
   Tompkins, J.

Under a long line of authorities the allegation in the affidavit of Frank M. Dain that the defendant is a foreign corporation, without giving the source of affiant’s knowledge, or showing facts justifying him in making averment based upon personal knowledge, is insufficient; and for that reason the court lacked jurisdiction to grant the warrant of attachment.

The courts have held that a warrant of attachment may be amended to make it conform to the facts stated in the affidavit, but I find no authority for an amendment by an affidavit supplying, facts that were essential to the court’s exercise of jurisdiction in the first instance. On the contrary, the authorities seem to be the other way. Because of the insufficiency of the affidavits upon which the warrant of attachment was granted I must grant the motion.

Motion granted.  