
    Crowns v. Vail et al.
      
    
    
      (Supreme Court, General Term, First Department.
    
    January 28, 1889.)
    1. Attachment—Affidavit by Attorney—Sufficiency.
    An. affidavit for an attachment, made by plaintiff’s attorney of record, who is not shown to be plaintiff’s attorney for any purpose other than that action, will be presumed to be made on information and belief, though it states facts positively, and is insufficient when it does not state the grounds and sources of such information and belief.
    2. Same—Prior Attachment—Motion to Vacate.
    Code Civil Proc. N. Y. § 636, provides that an affidavit for attachment must show that plaintiff is entitled to recover a specified sum from defendant, “ over and above all counter-claims known to him. ” An attaching creditor sued as assignee on several causes of action accruing to several different persons, and his affidavit, besides stating that no offsets existed against such causes of action in favor of defendants, also asserted that he himself was entitled to recover from defendants a specified sum, “over and above all counter-claims known to” him. Held, that such affidavit was sufficient on which to base a motion to vacate a prior attachment.
    Appeal from special term, Hew York county.
    Action by George H. Crowns against James W. Vail and William Landolt. Plaintiff obtained an attachment against the property of defendants, which was vacated on motion of a subsequently attaching creditor, and plaintiff appeals.
    Argued before Van Brunt, P. J., and Daniels and Bartlett, JJ.
    
      Butler, Stillman <fi Hubbard, (William Allen Butler, of counsel.) for appellant. Barlow & Wetmore and Francis C. Barlow, for respondents.
    
      
      Affirming 2 N. Y. Supp. 218.
    
   Van Bbunt, P. J.

This motion was made by a subsequently attaching creditor to set aside an attachment which had been granted in this case against the property of the defendants. The ground of the motion was the infirmity of the affidavit upon which the .attachment was granted. The affidavit was made by one of the members of the firm who are attorneys of record for the plaintiff in this action. It was positive in its terms, alleging a cause of action ; that the defendants were non-residents of the state, and that the sum claimed was due and owing from the defendants to the plaintiff, over and above all counter-claims known to plaintiff or deponent. The appellant seeks to support this affidavit upon the ground that where the affidavit states facts positively the court will not presume or infer that the affiant had no such positive knowledge. An examination of the authorities cited by the learned counsel for the appellant does not seem to bear out the broad proposition just enunciated. The true rule seems to be that statements in -affidavits will be presumed to have been made on personal knowledge, unless stated to have been on information and belief, and unless it appears affirmatively and by fair inference that they could not have been and were not made on such knowledge. It seems to us that where an affidavit in respect to a transaction of his client is made by simply an attorney of record in an action, and who as far as the record shows is only his attorney for this action, the plain inference is that such attorney has not personal knowledge of the facts as to which he affirms. It is not even asserted in the affidavit that the affiant is the attorney in fact of the plaintiff, or that he had been the attorney of record of the plaintiff in any previous action, and all that can be inferred from the affidavit is that the retainer to bring this action was the first relation that had ever existed between the plaintiff and the affiant. Such an affidavit seems to be entirely insufficient, as the allegations must be presumed not to be within the knowledge of the attorney, and, such being the case, they must have been made upon information and belief, and, the sources of information and the grounds of belief should have" been stated.

The appellants, however, further claim that the moving party has no standing in court because of the infirmity in his own pápers. It is a well-settled rule that when a subsequently attaching creditor attacks the sufficiency of the papers upon which the prior attachment is granted, the court will examine his papers to see whether they comply with the statute which he invokes as against the prior attachment. The moving creditor sued on 24 several causes of action originally existing in favor of 13 different persons, all non-residents of the state, and aggregating over $7,000; all these claims having been assigned to the said creditor. The papers upon which his attachment was granted contained an averment by the affiant Page that all of the original drafts and certificates of deposit therein described were in his possession, and that he had personal knowledge of the contents thereof, and that he had also personal knowledge of the fact that no counter-claims or offsets on said causes of action existed against them in favor of defendants; and also contained the allegation that the plaintiff was entitled to recover from defendants the sum of over $7,000, besides interest, over and above all counter-claims known to him. This affidavit is attacked upon the ground that the affiant did not show that he had sufficient knowledge of counter-claims in favor of the defendant in the attachment existing against the assignors of the claims. A brief examination of the Code seems to show that this objection is not well taken. Section 636 of the Code, which provides what must be shown to procure a warrant of attachment, is as follows: “To entitle the plaintiff to such a warrant he must show by affidavit, to the satisfaction of the judge granting the same, as follows: First, that one of the causes of action specified in the last section exists against the defendant. If the action is to recover damages for breach of a contract, the affidavit must show that the plaintiff is entitled to recover a sum stated therein, over and above all counter-claims known to him.” The affidavit of the affiant Page swears to that fact absolutely; and it is of a fact in regard to which he is supposed to have some personal lino wledge. He is not required to swear as to counter-claims existing against his assignors. The requirement is that the affidavit must show that the plaintiff is entitled to recover the sum stated therein, over and above all counter-claims known to him, and not known to him or his assignors. The affidavit, therefore, upon which Page applied to vacate the attachment of the plaintiff was a sufficient compliance with the Code, and that part of the affidavit in which he attempted to show that no counter-claims existed in favor of the defendants against his assignors was in excess of the requirements of the statute. The court cannot impose this additional condition to the granting of an attachment, without expressing an intention upon the part of the legislature which has nowhere been intimated. In other words, it would be judicial legislation. The order should be affirmed, with $10 costs and disbursements. All concur.  