
    Francis Wilson, Respondent, v. Samuel Collins, Appellant.
    Second Department,
    April 26, 1907.
    Arrest — when affidavit alleging fraud insufficient.
    * In an action based on fraud in the sale of a picture, an arrest of the defendant will be vacated when the moving affidavit of the plaintiff states of his own .knowledge that he purchased the picture of the defendant' relying upon the ■ representation that it was made by a certain well-known artist and that the defendant made such representation With knowledge of its falsity and with intent to deceive and defraud the plaintiff. As the plaintiff, not’an expert,
    . purchased the picture supposing it to be painted by that artist, the affidavit does not establish that he knew personally who painted it or what knowledge the defendant had oh the-subject.
    Hooker and Rich, JJ., dissented.
    Appeal by the defendant, Samuel Collins, from an order of the . Supreme Court, made at the Westchester ¡Special Term and entered in the office of the clerk of the county of Westchester on the 12th day of December, 1906. -
    
      R. Floyd Clarke £Franois S. Turner with him .on the brief], and Bela D. Fisler {Robert, Gpeller with him on the brief], for the appellant.- ' ■ - -
    
      William I). Leonard, for the respondent."
   Miller, J.:

The defendant appeals from an order denying a motion to vacate an order of arrest, and asserts that the affidavit upon which said order of arrest was granted is insufficient.

The action is for fraud. To obtain the order of arrest the plaintiff swore as of his own knowledge that, he purchased of the defe.ndr ant .an oil painting, relying upon .the representation that it was made by a well-known and celebrated Dutch artist named Mauve; and that the defendant made said representation with knowledge of its falsity and with intent to deceive and'defraud the plaintiff. It is claimed that the plaintiff could hot have had personal knowledge of all the facts sworn to, and that, therefore, the affidavit is entitled to no more force'than if sworn to on information and belief. When the plaintiff purchased the picture.he supposed it was painted by. Mauve. It is impossible to ■ see liow lie can now personally know' who painted it, or what knowledge the defendant had on the subject. He does not pretend to be an expert, and lie makes the state- . ment as a fact and not as an opinion. If we had proof of the facts from which the plaintiff makes the deduction sworn to, we might or might not be able to make the same deduction. Section 557 of the Code of Civil Procedure requires proof by affidavit that a sufficient cause of action exists against the defendant. .Where the affiant cannot have had actual knowledge of the facts sworn to, his recklessness in swearing cannot obviate the necessity of furnishing proof of the facts and circumstances from which the court can draw the necessary conclusion.

The order should be reversed and the motion granted.

Jenks and Gaynor, JJ., concurred; Hooker and Rich, JJ., dissented.

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