Mallon v. Rothschild , 76 N.Y.S. 710 ( 1902 )

Gildersleeve, J.

The plaintiff obtained; on the ground of non-residence of defendant, a writ of attachment. The defendant made a motion to set aside the attachment on the papers upon which it was obtained, claiming that it was not shown that defendant was a nonresident. The affidavit as to the nonresidence of defendant is made by the plaintiff,who swears that “the defendant is not a resident of this State, but resides at Ho. 37 Montcalm street east, in the city of Detroit, State of Michigan, as deponent is informed by Gerhard G. Jansen, whose affidavit is hereto annexed, showing that the said defendant is a resident of said State, and now resides at the aforesaid address.” The affidavit of said Jansen was made in Michigan, and it is conceded to be insufficiently authenticated to warrant its use as an original paper in evidence, under the authority of Turtle v. Turtle, 31 App. Div. 49. The mere averment of facts as upon personal knowledge, in an affidavit made to procure an attachment, is not sufficient, unless circumstances are stated from which the inference can fairly be drawn that the affiant has personal knowledge of the facts which he avers. Hoormann v. Climax Cycle Co., 9 App. Div. 579. It is not pretended in the case at bar that plaintiff has personal knowledge of the nonresidence of the defendant. The rule is that, while it is not necessary to the validity of an attachment that the affiant, upon whose affidavit the writ is applied for, should have personal knowledge of the facts required to be stated, and the same may be stated on information and belief, still it is essential that his information should appear to have been competently derived. The sources of the information must be disclosed in such a way as to enable the court to decide upon the probable truth of the statements and the authenticity of the jurisdictional facts. Murphy v. Jack, 142 N. Y. 215. As we have seen, the plaintiff bases her assertion as to the jurisdictional fact of defendant’s non-residence upon the statement of Jansen, to whose affidavit she refers, which affidavit is insufficiently authenticated to be received in evidence. Upon this state of facts the case of Hawkins v. Pakas, 39 App. Div. 506, seems to be controlling. In that case it was held that the deposition of a third person, taken in a foreign State, and authenticated by a foreign notary, while insufficient as an affidavit, may properly be considered by the court when, stated by the plaintiff, in an affidavit made by him, to be the' source from which he derives his information and belief; and, in such a case, the fact even that it is not signed by such third person is immaterial. As we have seen, the defendant makes no denial of the plaintiff’s claim as to his nonresidence, but relies wholly upon the alleged insufficiency of the proof, presented by the plaintiff, of such nonresidence. The plaintiff states that fact on information and belief, and gives the source of such information and! belief, which seem to have been competently derived. It must be held that the affidavit as to the nonresidence of defendant is sufficient to warrant the court in granting the attachment on that ground.

Defendant also attacks the attachment on the ground that the damages aré unliquidated and plaintiff has not satisfactorily shown in what sum she is entitled to judgment. Undoubtedly, on an application for an attachment, the moving papers must set forth facts from which a conclusion can be properly drawn that plaintiff has been damaged in an ascertainable sum, where the claim is for unliquidated damages. (See Farquhar v. Wisconsin Condensed Milk Co., 30 Misc. Rep. 270; Story v. Arthur, 35 id. 244). But it appears from the affidavit of A. B. Daniels, to whom plaintiff refers as the source of her information as to the value of the labor and materials, that the reasonable value is the sum named by the plaintiff; and said Daniels sets forth, in sufficient detail, the requisite averments as to such labor and materials and the value thereof. This objection of the defendant cannot be sustained.

There is one other alleged defect in the moving papers, according to the claim of defendant’s attorney. He points out that under chapter 687, section 15, of the Laws of 1892 (which provides that no foreign corporation, other than a moneyed corporation, doing business in Hew York, shall maintain an action on any contract, made therein, until it shall have procured from the Secretary of State a certificate, showing that it has complied with the laws governing such corporations), the assignee of a contract of a foreign manufacturing corporation, which has failed to procure such certificate, has no standing in the courts. Mueller v. Wall Rope Co., 53 N. Y. Supp. 255, Lawrence, J. The plaintiff herein is the assignee of the claim of the L. L. Brown Paper Company, a foreign manufacturing corporation. The contract is in the form of a letter, and is dated “ Hew York, October 19, 1897,” and is addressed by defendant to the plaintiff’s assignor, at Adams, Massachusetts. There is no statement that the said corporation has procured the certificate indicated from the Secretary of State. On the other hand, there is no evidence whatever that would warrant an inference that the said corporation is “ doing business in Hew York.” The statute particularly refers to foreign corporations “ doing business in Hew York.” In the cases cited by defendant’s counsel, it appears affirmatively that the foreign corporation hviaa '“doing! business in Hew York.” I am of opinion that there is no merit in this objection to the attachment. The motion to vacate the attachment is denied, with ten dollars costs to abide the event.

Motion denied, with ten dollars costs to abide event.