
    Hodgman v. Barker.
    
      (Supreme Court, General Term, First Department.
    
    May 15, 1891.)
    •1. Attachment—Motion to Vacate—Affidavit—Sufficiency.
    In an application by an intervening creditor to vacate a prior attachment the affidavit of the junior attachment creditor, made by its cashier, stated that plaintiff had a just cause of action against defendant by reason of his fraud in procuring moneys on certain forged promissory 'notes made by defendant and transferred by him to plaintiff, whereby plaintiff parted with moneys, and was defrauded in the sum of $21,000. Meld, that the affidavit consisted of allegations of simple conclusions of law, and not allegations of fact, and was therefore insufficient to support the attachment. Lawrence, J., dissenting.
    "2. Same—Personal Knowledge of Affiant. ' -
    In such case the affidavit is further defective in that it does not appear therefrom that the affiant could have had any personal knowledge as to whether the notes in question were forged or not.
    ;3. Same—Motion to Vacate—Affidavit of Levy.
    Code Civil Proc. N. T. § 682, provides that “a person who has acquired a lien or interest in * * * property after it was attached may at any time * * * apply to vacate or modify the warrant. ” An intervening creditor in an attachment proceeding, moving to vacate plaintiff’s lien, offered no evidence of his own lien except the affidavit of his attorney, stating upon information from a deputy-sheriff that such lien had been acquired by levy. Meld, that the affidavit of the attorney made upon information was insufficient evidence of the existence of the lien, and that the refusal of the deputy to make affidavit was no sufficient excuse for the non-production of bis affidavit, which he might have been compelled to make under Code Civil Proc. N. V. §885, which provides that a party intending to make a motion in a court of record, to be supported by affidavit, may compel the attendance of the intended affiant and the making of an affidavit by him before a referee.
    -4. Same—Levy on Realty.
    Code Civil Proc. IT. V. § 649, provides that service of an attachment on real estate shall consist in filing with the clerk a notice of attachment, stating the names of the parties to the action, the amount of plaintiff’s claim, and a description of the particular property levied on, etc., to be recorded and indexed by the clerk in the same book and in like manner as a notice of the pendency of an action. Meld, that a mere statement of a deputy-sheriff that a notice of attachment had been filed in the •clerk’s office was insufficient evidence of a levy under an attachment.
    
      Appeal from special term, New York county.
    Application by the National Broadway Bank to vacate an attachment levied on the property of Stephen B. Barker at the suit of George J?. Hodgman. Plaintiff appeals from an order vacating his attachment. Code Civil Proc. N. Y. § 682, provides that “a person who has acquired alien upon or interest in * * * property after it was attached may at any time '* * * apply to vacate or modify the attachment.” Code Civil Proc. N. Y. § 885, provides that a party intending to make a motion in a court of record, wherein it is necessary to have the affidavit of a person, may obtain an order appointing a referee to take such affidavit, and may compel the attendance of the proposed affiant before the referee for that purpose by subpoena. Code Civil Proc. N. Y. § 649, provides that service of an attachment shall consist in filing with the clerk a notice of attachment, stating the names of the parties to the action, the amount of plaintiff’s claim, and a description of the particular property levied on, etc., to be recorded and indexed by the clerk in the same book and in like manner as a notice of the pendency of an action.
    Argued before Van Brunt, P. J., and Daniels and Lawrence, JJ.
    
      Eugene K. Sackett, for appellant. Kelly & MacRae, ( Wm. E. MacRae, of counsel,) for respondent.
   Van Brunt, P. J.

I cannot concur in the conclusion arrived at by Mr. Justice Lawrence, that the order appealed from should be affirmed. It is undoubtedly true that the papers upon which the plaintiff obtained his warrant of attachment disclose no cause of action, as stated in the opinion of Mr. Justice Lawrence, but it would appear that the papers upon which the moving party, the National Broadway Bank, obtained its attachment were equally defective. It appears from the warrant that it was obtained upon an affidavit made by the cashier of the National Broadway Bank, in which the allegation simply is that the plaintiff is a domestic corporation, and has a just cause of action against the defendant for injury to personal property by reason of the fraud of defendant in procuring moneys on six forged and fraudulent promissory notes issued in form to the defendant, but fraudulently forged, made, and used by the defendant, and transferred by him for value to the plaintiff, whereby the plaintiff parted with moneys, and was defrauded in the sum of $21,800, in which' sum the defendant is justly indebted to the plaintiff over and above all counter-claims known to the plaintiff. These áre allegations of simple conclusions of law, and not allegations of fact showing that a cause of action existed. It further does not appear that the affiant could have had any personal knowledge as to whether the notes in question were forged or not, and, without any evidence to support the assertion, the ■conclusion that the notes were forged is sworn to. This is wholly insufficient to support the attachment, as has been held in the case of National Broadway Bank against the Same Defendant, 14 N. Y. S. 529, (decided herewith.) It is true that in the case cited there was an attempt to establish the fact that the ■complaint was before the court on the granting of this attachment; but there is nothing in the papers presented upon this appeal to show that such complaint was before the court, even though, with such complaint before the court, the ■defects in the affidavit in question would have been remedied. Now, it cannot be that where a party seeks as a subsequent lienor to vacate a prior attachment, and his papers are as defective in establishing the lien as are the papers of the party against whom he moves, he can succeed in his motion. There is another objection to the maintenance of the motion, and that is that, even if the attachment of the bank was properly issued, there is nothing to show that it had ever been levied upon the property of the defendant therein. It is true that it is said that the deputy-sheriff having charge of the warrant of attachment has stated certain things in respect to the levying of the attachment; but in the case cited above the same language was considered, and a mere allegation upon information and belief, where no sufficient excuse is given for not furnishing the affidavit of the party from whom the information is received, was held to be insufficient. In respect to the real estate it is alleged that deponent has examined the records of the county clerk’s office, and has found that on the 25th of October, 1890, the notice of attachment in this action was filed, and on the 27th of October, 1890, the notice of attachment was filed in the action of the National Broadway Bank, and that the real property levied upon is the same in both said notices of attachment. This" is a mere statement of a conclusion. What this notice was. we do not know. We are not informed, and whether it was such a notice as complied with the provisions of the Code, so as to make the attachment a lien upon the real estate, is nowhere set forth. We think upon such loosely drawn papers as these no-status for the vacating of a prior lien is established, and that the order appealed from should be reversed, with $10 costs and disbursements, and the motion denied.

Daniels, J.,

(concurring.) The affidavit of Mr. what he was informed by the deputy-sheriff had been done in the way of attaching the property of the defendant in the two stores, supplied no legal evidence that such was the fact. Information of that description is not proof. Neither does the statement of the same person that a notice of the attachment had been filed in the action in the clerk’s office prove that any real estate had been attached under either attachment. To make service of an attachment on real estate the law requires that there shall be filed with the clerk a notice of the attachment, stating the names of the parties to tjie action, the amount of the plaintiff’s claim as stated in the warrant, and a description of the particular property levied upon, which must be subscribed by the plaintiff’s attorney, adding his office address, and be recorded and indexed by the clerk in the same book, in like manner, as a notice of the pendency of an action. Code Civil Proc. § 649, subd. 1. And the affidavit wholly fails to prove a compliance with-this provision. This motion depended upon a matter of strict right between the moving and the preceding attaching creditor. In the absence of that right, established by proof, the earlier attachment cannot be avoided. It was not so-maintained, for the affidavit failed to prove that the attachment of the bank had been levied upon either personal or real property. There was no legal foundation for the motion, and I agree that the order should be reversed, and the motion denied.

Lawrence, J.,

(dissenting.) In this case the plaintiff obtained an attachment against the defendant’s property on the 24th day of October, 1890, upon an affidavit in which be states: (1) That he is entitled to recover from the defendant the sum of $12,500, over and above all counter-claims known to-the plaintiff, and upon one of the causes of action mentioned in section 635 of the Code of Civil Procedure, and particularly set forth in subdivision 2 of this affidavit. (2) That on or about the 20th of September, 1890, Peter W.. Gallaudet and others were engaged in business as note brokers in the city of' New York under the firm name of P. W. Gallaudet & Co., and at the same date, and ever since, one John M. Cornell was engaged in business at said city as iron manufacturer, under the name of J. B. & J. M. Cornell. That at the date last mentioned said defendant, Stephen T. Barker, delivered to-said P. W. Gallaudet & Co. three certain promissory notes, all bearing date September 20,1890, and purporting to be made by said J. B. & J. M. Cornell, payable to the order of Barker & Co. in manner following, viz.: One note for $4,600, due in four months; one for $4,000, due in five months; and one for $3,500, due in six months,—said periods being reckoned from the date of said notes. That ail of said notes were indorsed by Barker & Co., which was the name under which said Stephen T. Barker was transacting business, and said name of Barker & Co. did not represent any other partner or person than said Stephen T. Barker, to the best of this deponent’s knowledge, information, and belief. Deponent further says that upon the delivery of said notes as aforesaid said Stephen T. Barker guarantied to said P. W. Gallaudet & Co. that the signatures of the makers appearing thereon respectively were the genuine signatures of said J. B. & J. M. Cornell; and the said Stephen T. Barker then and there requested said P. W. Gallaudet & Co., as such brokers, to sell and dispose of said-notes for him, and to deliver to him the proceeds thereof; and thereupon said P. W. Gallaudet & Co. did sell and transfer all of said three notes to bona fide purchasers for valuable considerations, and did guaranty to said purchasers that the signatures of the maker appearing thereon respectively were genuine signatures of said J. B. & J. M. Cornell, and did pay over the proceeds of said sales to said Stephen T. Barker. That thereafter, and before this action, said Gallaudet & Co. discovered, and the fact is, that said signatures appearing upon said notes to be the signatures of J. B. & J. M. Cornell were not the signatures of the said J. B. & J. M. Cornell, and that said notes never were made or signed by the said J. B. & J. M. Cornell, or by the authority of the said J. B. & J. M. Cornell. That said Stephen T. Barker is insolvent, and has absconded, and his present whereabouts are unknown to plaintiff. That said P. W. Gallaudet & Co. have assigned to this plaintiff all their claims against the said Stephen T. Barker arising out of the facts hereinbefore stated. That said Stephen T. Barker is not a resident of the state of New York, but resides at Glen Ridge, in the state of New Jersey. The National Broadway Bank subsequently moved to set aside the attachment in favor of the plaintiff upon an affidavit made by its attorney, wherein it is stated that on the 27th of October, 1890, an attachment against the property of the defendant was duly granted in an action wherein it was plaintiff and Barker defendant, and that a warrant was duly issued to the sheriff of the city and county of New York, who has by virtue thereof attached the property of the defendant as hereinafter set forth, and that James Young, as deputy-sheriff, has charge of the warrants issued in both actions, and has informed said attorney that on the 24th of October, 1890, he attached the property of the defendant in the stores No. 27 Maiden lane, and No. 8 College place, in New York city, and that on the 27th of October, 1890, he attached the same property under the warrant of attachment in the aforesaid suit of the National Broadway Bank; that the defendant also owned an undivided one-fifth interest in certain real estate sithated in the city and county of New York, and deponent has this day examined the records in the clerk’s office of the said city and county of New York, and finds therein that on the 25th day of October, 1890, a notice of attachment was filed in this action, and that on the 27th day of October, 1890, a notice of attachment was filed in the action of the National Broadway Bank, and that the real property so levied upon is the same in both said notices of attachment. The motion by the bank to set aside the attachment in favor of the plaintiff on the ground of the insufficiency of the plaintiff’s affidavit was granted. We are of the opinion that the order below should be affirmed. There is nothing in the affidavit on which the plaintiff’s warrant was obtained which shows that the plaintiff’s assignors, P. W. Gallaudet & Co., had been called upon by the holders of the forged paper to pay over to them the amounts for which they had purchased the notes or had incurred any liability thereon. Until such fact appears, it seems to us, no cause of action arose in favor of the firm of P. W. Gallaudet & Co., and that therefore the action of the plaintiff was prematurely brought. The plaintiff, however, attacks the affidavit on which the bank obtained its attachment, and claims that it does not state a case in which an attachment should issue. We are of the opinion that the statement in the affidavit of Mr. Kelly as to the information derived from the deputy-sheriff respecting the attachment of the personal property in Maiden lane and College place would not be sufficient evidence to sustain a lien in favor of the bank upon that property; but enough is stated in that affidavit to show that the interest of the defendant in the real estate had been duly attached under the bank’s attachment. The other criticisms upon the affidavit of the moving party we do not regard as sound. The order appealed from should be affirmed, with $10 costs and disbursements to the respondent.  