
    Arthur W. Andrews, Appellant, v. Sevill Schofield and Others, doing Business under the Firm Name of Sevill Schofield & Sons, Respondents.
    
      Attachment — when information received over' a telephone from an attorney 4s not a sufficient basis for it—when a defendant may move to vacate an attachment— laches in applying to'vacate .it — when rule 87 of the General Buies of Practice, as to specifying irregularities, is inapplicable.
    
    An affidavit of the managing clerk of an attorney in New York city which states that he had received a communication over the telephone, coming from Philadelphia and from an attorney there whose voice he recognized, in which that attorney stated that a person in Philadelphia had assigned his claim against certain nonresidents of the State of New York for a certain sum which such non-residents had promised to pay, and, also, that there were no offsets or counterclaims against it, and that the amount of the claim had been admitted by the alleged debtors, is insufficient to justify the issue of an attachment in an action brought by the assignee against such non-residents, the communication being not only merely hearsay, but there being no statement in the affidavit that any person who had knowledge of facts tending to establish a cause of action had made a statement of such facts.
    A defendant may, under the provisions of section 683 of the Code of Civil Procedure, move to vacate a warrant of attachment before any property has beep, 'attached, or at any time before attached property or its proceeds have been applied to the payment of the judgment rendered in the action.
    Where his motion is based upon the ground that the facts stated afford no basis for an attachment, rule 87 of the General Rules of Practice, requiring a notice of motion to specify the irregularity attacked, has no application.
    Appeal by the plaintiff, Arthur W. Andrews, from so much of an order of the Supreme Court, made at the New York Special Term and'entered in the office of the clerk of the county of New York on the 26th day of January, 1898, as vacates a warrant of attachment theretofore granted in the action. •
    
      Henry S. Wardner, for the appellant.
    
      Benjamin N. Cardoso, for the respondents.
   Ingraham, J.:

The plaintiff, as assignee of one Francis P. Sibley, who was a resident of Philadelphia, in the State of Pennsylvania, applied for a warrant of attachment against the property of the defendants, who were non-residents, also residing in Philadelphia, upon the affidavit of Arthur W. Andrews, plaintiff, who alleged, upon information and belief, based upon an affidavit of one Wilson Wallace Thompson, that a cause of action existed, and that the defendants were nonresidents. By the affidavit of Hr. Thompson, it appears that he was managing clerk in the office of the plaintiff’s attorney; that on the day the application was made deponent had received a communication over the telephone from Philadelphia from one John Sparhawk, informing the deponent that Hr. Sibley, of Philadelphia, had assigned ;to the plaintiff his claim against the defendants; that said Sparhawk also informed the deponent that the defendants were all residents of Philadelphia, and that the defendants became indebted to Sibley in the sum of $985, which the defendants had promised to pay, and that that amount was then due, payment of which had been demanded, but was refused; that Sparhawk also informed the deponent that Sibley had assigned that claim to the plaintiff, and that Sparhawk’s knowledge, upon which he based his information, was that said Sibley, had informed him there were no counterclaims, set-offs or discounts to his claim against the defendant, and that Sparhawk had further informed the deponent that the amount of this claim had been admitted by the defendant to him as being true and correct. This was the only allegation of fact tending to show that a cause' of action existed in favor of the plaintiff against the defendants.

■ It is quite clear that this affidavit was insufficient to justify the court in granting the attachment. By section 636 of the Code it is provided that, to entitle the plaintiff to such a warrant, he must show by affidavit, to the satisfaction of the judge granting the same, that one of the causes of action specified in section 635 exists against the defendant. There is nothing here but the statement of a person in New York, who received over the telephone a communication which purported to come from Philadelphia, and which the receiver recognized as from a Mr. Sparhawk, who was counsel for a Mr. Sibley in Pennsylvania, and that that communication contained the information that Mr. Sibley had sold goods to the defendants in Philadelphia, and that the defendants were indebted to him in the amount stated. This is entirely insufficient as evidence of any fact. It is simply the statement over the telephone of a person in Philadelphia who says that somebody else told him of the existence of the fact tending to prove a cause of action. The evidence is not only hearsay, but there is no evidence to show that any one who had knowledge of ’ a fact tending to show a cause of action had made the statement of such a fact. It does not seem that information derived in such a manner can be said to be any evidence tending to prove that a cause of action exists. The motion is made in this case by the defendants, not by one who has acquired a lien subject to that of the attachment, and the question is whether, assuming.that the court had jurisdiction, it should have granted an attachment upon such evidence, and we do not think it was sufficient.

The appellant, however, insists that, as the notice of motion specitied no irregularity, the motion should have been denied under rule 37 of the General Rules of Practice. The motion, however, was not made on the ground that the attachment was irregular, but that there was no evidence to justify the court in granting it. The application, therefore, was based upon the merits and not upon an irregularity.

We think that the motion could be made, notwithstanding that it did not appear that any property had been attached by the sheriff under the warrant of attachment.

By section 682 of the Code it is provided that the defendant, or a person who has acquired a lien upon or interest in his property after it was attached, may, at any time before the actual application of the attached property or the proceeds thereof to the payment of a judgment recovered in the action, apply to vacate or modify the warrant of attachment. This section does not limit the right of a defendant to move to a case in which the warrant has been executed by a levy. The section gives him the right to apply to vacate the attachment at any time before the property levied upon under the attachment is applied to the payment of a judgment recovered in the action. To entitle a person who has acquired an interest in the defendant’s property to make the motion, it must appear that the property in which he has such an interest has been levied on under the attachment; but this provision has no application to a motion made by the defendant. Where the defendant moves, he may do so at any time before, as well as after, the- warrant has been executed by a levy. To justify an application of a person other than the defendant, he must show that property has been levied upon under the attachment and that he has acquired an interest in or title to such property.

Nor were the defendants barred by laches from making this motion. The statute expressly gives them the right to move at any time before, the attached property is applied to the payment of the judgment entered in the action in which the attachment is granted, and the mere lapse of time is no objection' to the granting of the motion. Nothing appears to show that any act of the defendants has misled the plaintiff, or induced him not to take such further proceedings as would be necessary to protect him. To hold that a mere delay in making the motion would be such laches as to defeat his right to vacate the attachment would be to disregard the provisions of the Code which expressly allow the motion to be made at any time before the disposition of the attached property.

We think the attachment was, upon the affidavit presented, improvidently granted, and that the order vacating it was right and it is affirmed, with costs.

Van Brunt, P. J., Barrett, Rumsey and McLaughlin, JJ., concurred.

Order affirmed, with ten dollars costs and disbursements.  