
    John H. W. Cole, Respondent, v. Frederick Core, Appellant.
    First Department,
    October 25, 1907.
    Husband and wife — alienation of affections — arrest — moving affidavit insufficient.
    An affidavit by a plaintiff to obtain the arrest of the defendant in an action to recover damages for alienation of the affections of the plaintiff’s wife, which alleges formal personal knowledge that the defendant at various times and places debauched the wife and destroyed her affection for the plaintiff as stated in the complaint, is insufficient to warrant an order of arrest, by reason of the failure of the affiant to set forth in what manner he obtained the knowledge or from what facts he deduced his conclusions. This upon the ground that under the circumstances there is a fair presumption that the facts positively averred were not within the affiant’s personal knowledge.
    Appeal by the defendant, Frederick Core, from an order of the Supreme Court, made at the New York Special Term and entered in the office óf the clerk of the' county of New York on'the 30th day of July, 1907, denying the-defendant’s motion to vacate and cet aside an order of arrest.
    
      Roy M. Hardy, for the appellant.
    
      William D. McNulty, for the respondent.
   Houghton, J.:

The action is to recover damages for the alienation of the affections ■ of plaintiff’s wife. The complaint by positive allegation alleges that without the knowledge or procurement of plaintiff, the defendant, contriving and intending to injure the plaintiff' and alienate the affections of his' wife,.at various times arid places debauched her and destroyed her affection for plaintiff,.to his great' distress and damage.

The affidavit which' was presented with the complaint upon the application for the order óf arrest,, alleges that all of the allegations of the complaint are true to deponent’s knowledge.

The motion to.- set aside the order of arrest was denied and the defendant appeals.

The principal point urged by the defendant is that the complaint itself states that the acts charged against defendant were committed without plaintiff’s knowledge. If it be assumed that the averment of lack of knowledge and procurement is a mere formal and technir cal allegation, and hence not' to be construed as a broad assertion that plaintiff had no knowledge of. the commission- by the defendant of the acts complained of, still we think the proof upon which the order of arrest was granted was insufficient. It - can hardly be assumed that the plaintiff was present at the defilement of his wife. If he was not he learned the facts 'from confession or hearsay, or from deduction from facts and circumstances. His affidavit should have set forth how and in what manner knowledge came to him, or the facts from which he deduced his Conclusion, so that the justice to whom the application was made might determine the propriety of granting an order of arrest. It has been held that the mere aver-' ment in an affidavit of facts as upon personal knowledge is'not sufficient unless circumstances, are stated from which the inference can fairly be drawn that the affiant has personal knowledge of the facts which he avers. (Hoormann v. Climax Cycle Co., 9 App. Div. 579.) This is particularly true where a fair presumption arises that the fact positively averred could not have been- witlfin the personal knowledge of. the affiant. ■ -

Of course,, it is possible that the plaintiff may have discovered the. defendant and his wife in the perpetration of the wrong, and thus had personal knowledge. - If such was . the fact, we think he should have; sb stated. The charge of continued' and repeated defilement tends to negative the idea of. discovery in stieh a manner.

The affidavit in our opinion was insufficient and the motion to Vacate should have been granted. ■

The order appealed from must be- reversed, with ten dollars costs and disbursements, and the motion to vacate the order of arrest, granted, with ten dollars costs.

Patterson, P. J., Ingraham, Laughlin and Clarke, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs, >  