
    John V. O. Muller, Respondent, v. The Hatch Cutlery Co., Appellant.
    (City Court of New York
    —General Term,
    April, 1895.)
    A complaint setting forth on information and belief that plaintiff’s assignor performed personal services for the defendant at its request at an agreed • annual salary of a certain amount, of which no part had been paid except a specified sum, and alleging that the cause of action and moneys due to said assignor for said services had been assigned to the plaintiff before the commencement of the action and that he is entitled to recover a sum stated over and above all counterclaims known to him, sufficiently sets forth the sources of the plaintiff’s information and belief, and is sufficient to sustain an attachment.
    Appeal by defendant from order denying motion to vacate attachment against its property.
    
      
      Fred G. Dow, for respondent.
    
      Walter D. Clark, for appellant.
   Yah Wyok, J.

The defendant’s notice of motion recited that the motion was made on the summons, complaint, affidavit and warrant of attachment thereon ” on the ground that the papers were defective and insufficient in that material allegations in said complaint were made solely on information and belief, and neither the complaint nor affidavit discloses the sources of plaintiff’s information and belief or knowledge of the same.”

The plaintiff sues on a cause of action assigned to him directly from the person to whom the original cause accrued, and his averment that he is entitled to recover the specified sum of defendant over and above all counterclaims known to him” is on knowledge, and is sufficient and in strict compliance with the Code, and so, too, his averment of the cause of attachment that defendant is a foreign corporation.

However, the averment of the cause of action is upon information and belief and does' not specifically state the source of the same, but does state on information and belief that one Haines, the plaintiff’s assignor, performed personal services as salesman during the year 1893 for defendant at its request and at an agreed annual salary of $1,200, of which no part had been paid except $600; but the allegation that Haines thereafter and before the commencement of this action assigned to plaintiff said cause of action and the money due to him from defendant for said services ” is upon knowledge, and the legal inference is that plaintiff’s source of information and belief as to the cause of action is Haines speaking by the assignment itself, and, if written, it is a solemn declaration over his own signature that he had performed such personal services for such term at such salary, of which $600 is unpaid, for defendant at its request, and, if oral, the same declaration must have been made by him to plaintiff, who avers upon knowledge the assignment of the cause of action and the money due from defendant for said services.

And so, too, the legal inference is that Haines had personal knowledge of this cause of action for his personal services performed by him as salesman for defendant, because the services of a salesman can only be performed by him in person, and not by him acting through another. v

Order affirmed, with ten dollars costs.

McCarthy, J., concurs.

Order affirmed, with ten dollars costs.  