Murphy v. Jack , 31 Abb. N. Cas. 201 ( 1894 )

Follett, J.

The right to attach property to secure the payment of a debt before recovering a judgment against the alleged debtor is not a common law right, but in this, as in most of the States, it exists by virtue of statutes, the requirements of which, and the procedure prescribed by them, must be substantially complied with by the attaching creditor in order to acquire a valid lien on the debtor’s property. Our Code requires the plaintiff “ to show by affidavit to the satisfaction of the judge granting the same ” (attachment) the necessary facts. The Code does not require that the affidavit shall be made by the plaintiff, nor by any one having personal knowledge of the existence of the facts stated in the affidavit, but an affidavit made by the agen t, or by the attorney of the attaching creditor, averring that the facts required to be shown by section 636 of the Code exist, as the affiant is informed and believes, stating the source of his information and the grounds of his belief, is sufficient to confer jurisdiction on a judge to grant an attachment (Buell v. Van Camp, 119 N. Y. 160; Bennett v. Edwards, 27 Hun, 352; Crowns v. Vail, 51 Id. 204; Kokomo Straw-Board Co. v. Inman, 53 Id. 39; Globe Yarn Mills v. Bilbrough, 2 Misc. 100; Reichenbach v. Spethmann, 5 Mon. L. Bull, 42).

In the case at bar the existence of the facts necessary to confer jurisdiction on the. judge having been shown by affidavit, the question is, ought the judge to have been satisfied by the evidence presented ? When courts and judicial officers are asked to act upon affidavits made on information and belief, they require, as a matter of safety, that the source of the information and the means by which it was communicated be disclosed. If the source of information be a person, it must be one whom the court can see probably had personal knowledge of the facts. communicated and the means by which the communication is made must be one which experience has shown to be usually reliable, and one which a prudent man would employ in a matter of importance to himself.

The source of information in this case was the plaintiff, the person of all others most likely to have personal knowledge of the existence of the debt, its amount and the residence of the debtors. The source of the affiant’s information is the best, and, indeed, it was not questioned by the learned judge at Special Term, nor is it by the learned counsel for the respondents, except it is suggested that some of the information was communicated by the plaintiff’s attorney in Boston, but it is specifically stated in the affidavit that all of the jurisdictional facts were communicated by the plaintiff. But it is said that the means by which the affiant acquired his information is not sufficiently reliable to authorize or support judicial action. The means through which the affiant derived his information was a conversation by a long distance telephone, the plaintiff being in Boston and the affiant in New York.

It has been held that an attachment may be based upon facts reported to the affiant by means of a cablegram (Reichenbach v. Spethmann, supra). In the case last cited an attachment was granted and sustained on information cabled from Europe to the affiant in New York. Certainly, the means would not have been less reliable had the sender and receiver of the cablegram been able personally to have communicated with each other by telegraph and had done so. There was certainly no greater chance for error in communicating the information received by the affiant, in the case at bar, in the manner in which it was communicated, between persons interested in arriving at the exact facts, than there would have been in a communication transmitted either by telegraph or telephone, and written out and delivered in the ordinary way.

We do not think that it will do to hold that judicial action cannot be based on information transmitted by telephone, unless, as it is suggested, the affiant swears that he knew and recognized the voice of the person with whom he communicated. Such identification is impossible in telegraphic communication, and the precaution of repeating dispatches would afford no greater security against deception than the opportunity of personal inquiry and cross-examination over the telephone. There can be no absolute rule by which the sufficiency of evidence to sustain attachments can be determined, and every case must depend largely upon its own facts and somewhat upon the nature of the action, and also between whom the question arises. In the case at bar the cause of action is a liquidated demand arising on the sale of goods. The ground for the attachment is that defendants are non-residents of the State, two simple facts, which, as between the creditor and debtors, we think were established/rms facie by the complaint and affidavit used on granting the writ, and that the burden was cast on the defendants, if they desired relief from the attachment, to rebut the presumption arising from those affidavits, and show affirmatively -either that they were not indebted or that they were not non-residents of'the State.

Had the question arisen between subsequent lienors a -stricter rule might be enforced, but, as between these parties, it seems to us that the plaintiff should not be deprived of his lien unless the defendants overthrow the frima facie case of the plaintiff.

The fact that the plaintiff was without the State, and that the affiant believed that the defendant’s attachable property would be removed from this State before an affidavit could be obtained from the plaintiff, was a sufficient excuse for presenting the affidavit of the attorney instead •of that of the party.

The order should be reversed, with $10 costs and printing disbursements, and the motion denied, with $10 costs, but with leave to the defendant to make a new motion upon affidavits for an order vacating the writ.

Henry D. Hotchkiss and William S. Maddox, for appellants. Sullivan & Cromwell and Edward B. Hill, for respondent.

O’Brien, J., concurred.