Houck MFG. Co. v. Standard Screw Products Co. , 149 N.Y.S. 975 ( 1914 )

BROWN, J.

The affidavit which it is claimed to have been established that the defendant was a nonresident of New York stated;

Upon information and belief that defendant Evans is a resident of the city of Detroit. Mich.; that during the month of August, 1914, said Evans moved from Buffalo to Detroit, took his family to Detroit, and moved all of his furniture and belongings to Detroit; that he now lives in Detroit, and intends to remain there, and that he is a resident of Detroit; that the sources of deponent’s information and the grounds of his belief as to the residence of said Evans are reports of his employés, who helped pack defendant Evans’ furniture and shipped the same to Detroit, and also a letter from said defendant Evans, which is annexed hereto, marked “Exhibit A,” and made a part hereof.

The letter was written from Detroit by defendant to plaintiff’s representative and stated that defendant expected to be in Buffalo Thursday or Friday; that a certain book for which inquiry had been made had been packed with defendant’s books; that as soon as defendant’s goods arrived defendant would forward the book; that it was unfortunate that the book had been “chucked in with my personal effects.” The affidavit is silent as to what it was that the defendant’s employés stated to the affiant, or what they reported as to the residence of the defendant. There is nothing in the letter upon which the conclusion that defendant is a nonresident can be based. No fact is stated, either hearsay or otherwise, from which the inference arises that defendant is a nonresident.

If the reports of the defendant’s employés made to the affiant had been stated, the court might have concluded that they did not justify the affiant’s belief as to defendant’s nonresidence. The court was required to find as a fact that the defendant was a nonresident before granting the order; but the papers before it disclosed nothing upon which to base such a finding, except the opinion of the affiant and that does not suffice. Cousins v. Schlichter, 135 App. Div. 779, 119 N. Y. Supp. 899.

Motion to vacate attachment granted, with $10 costs.