Ladenburg v. Commercial Bank ( 1895 )

VAN BRUNT, P. J.

This is an appeal from an order made upon a motion by a subsequent attaching creditor to set aside a prior attachment upon the papers upon which it was granted. No question is presented as to the status of the moving party; and the only points brought up for review are those arising on the papers upon which the first attachment was granted, and the right of the court, after the making of the motion, to set the same aside upon the papers upon which it was granted, to allow the introduction of amendatory affidavits. The attachment sought to be set aside was granted upon the affidavit of one of the plaintiffs, which alleged that the defendant was a foreign corporation, organized and existing under the laws of the dominion of Canada, doing business at St. Johns, Newfoundland ; that a cause of action existed in favor of the plaintiffs against the defendant to recover a sum of money, of the character mentioned in the act authorizing attachment; that the plaintiffs were bankers-in the city of New York, and the defendant was a banking corporation; and that on the 19th of November, 1894, at St. Johns, Newfoundland, the defendant made certain bills of exchange, dated on that day, and directed the same to the London & Westminster Bank of London, and by said draft required said London & Westminster Bank to pay to the order of themselves (evidently meaning the drawers of the drafts), 60 days after sight, a certain sum of money. The affidavit further stated that thereupon the said defendant indorsed and delivered said bills of exchange to the National Bank of the Republic of the City of New York, who sold the same to the plaintiffs. The affidavit then alleges, upon information and belief, that said bills of exchange were thereupon presented to the London & Westminster Bank at London for acceptance on or about the 7th day of December, 1894, but the same were not accepted, and were thereupon duly protested for nonacceptance, of all of which due notice was given to the defendant, and payment of the defendant was thereupon demanded. The affidavit further alleges that the source of the deponent’s information and belief was a cable received from the correspondent of deponent’s firm in London; and that no part of said acceptance had been paid, and there was then due from the defendant to the plaintiffs a certain sum over and above all counterclaims.

The ground which was insisted upon in the court below for the vacation of the attachment was that it appearing that the defendant was a foreign corporation, and that the cause of action arose out of this state, and it not appearing that the plaintiffs, or either of them, were residents of this state, this court had no jurisdiction to entertain the action. It has been held repeatedly in this department that, unless the jurisdictional facts appear in the papers upon which an attachment is granted against a foreign corporation, the attachment must be set aside, and that the plain meaning of the Code is that it must appear by affidavit that a cause of action of which the court has jurisdiction exists, to the satisfaction of the judge granting the warrant. It is undoubtedly true that, ordinarily, jurisdiction in a court of general jurisdiction need not be alleged. But, where the provisions of the law are that a court shall have jurisdiction of a certain class of cases only, where certain facts exist, it is necessary to allege, in order to show that a cause of action exists against such a defendant, that the facts essential to jurisdiction are present. It would be idle to require the establishment by affidavit of the existence of a cause of action of which the court had no jurisdiction as a prerequisite to the issuing of this extreme remedy. As has already been shown, it was the intention of the Code, before the issuing of the writ, to require that the judge called upon to issue the same should be satisfied that there was a right of recovery; and in an action against a foreign corporation no right of recovery exists unless the jurisdictional facts are shown.

It has been suggested that the legislature had no power to limit the jurisdiction of the supreme court by the alleged restrictions which it has placed upon it by the provisions of the Code. An examination of the law, however, seems to establish the fact that every provision of the statute, instead of being a restriction of jurisdiction, has been an extension thereof. The supreme court, prior to the provisions contained in the Revised Statutes (volume 2, p. 459, § 15), had no jurisdiction against foreign corporations, unless it could obtain jurisdiction of the persons of such corporations. Then this jurisdiction was enlarged by the enactment in question, which provided that suits brought in the supreme court by a resident of this state against any corporation created by or under the laws of any other state, government, or country, for the recovery of any debt, claim, or demand, might be commenced by attachment. This seems to have been the first legislation authorizing a proceeding in rem against a foreign corporation, and then such proceedings could only be instituted by a resident of the state.

In 1849, by chapter 107, the fifteenth section of the Revised Statutes was amended as follows:

“Suits may be brought in the supreme court, in the superior court, of the city of New York, and in the court of common pleas in and for the city and county of New York against any corporation created by or under the laws of any other state, government or country for the recovery of any debt or damages, whether liquidated or not arising upon contract made, executed or delivered within the state, or upon any cause of action arising therein. Such suits may be commented by complaint and summons, together with an attachment as provided by law,” etc.

By this legislation the jurisdiction of the supreme court was extended to all causes of action arising within this state. In the same year, section 427 was added to the Code of Procedure, which gave the courts above mentioned jurisdiction in actions against foreign corporations in cases where such action was brought by a resident of this state for any cause of action, and in cases where such action was brought by a nonresident of this state when the cause of action should have arisen or the subject of the action should be situated within the state; again increasing the jurisdiction of the courts in actions against foreign corporations. This jurisdiction remained in this condition until the enactment of section 1780 of the Code of Civil Procedure, where it was provided that an action against foreign corporations might be maintained by a resident of the state or by a domestic corporation for any cause of action, and that an action against a foreign corporation might be maintained by another foreign corporation or by a nonresident in one of the following cases only: (1) Where the action is brought to recover damages for the breach of a contract made within the state, or relating to property situated within the state at the time of the making thereof. (2) Where it is brought to recover real property situated within the state, or a chattel which is replevied within the state. (3) Where the cause of action arose within the state, except where the object of the action is to affect the title to real property situated without the state.

It will thus be seen that by the legislation which has taken place there has been no restriction of jurisdiction, but rather an enlargement thereof. Such being the case, such legislation cannot be held to have in any way infringed upon the constitutional protection of the jurisdiction of the supreme court; and therefore in the case at bar, the cause of action having arisen out of this state, the supreme court has no jurisdiction unless the plaintiffs were residents.

It is urged upon the part of the respondent that the allegations in the affidavit allege that the plaintiffs were residents of the state of New York. An examination of this affidavit, however, will show that it contains no such allegations. All that it alleges is that the plaintiffs are a firm doing business as bankers in the city of New York. They may have resided in New Jersey, in Connecticut, or in Europe, and yet this allegation be perfectly true. It is urged that no case can be found in the books that any similar statement is held to be an insufficient allegation of residence in the absence of express contradictory evidence. It may possibly be that no such case can be found, because it never before, perhaps, had been claimed that such an allegation is equivalent to an allegation of residence. In fact, we find in the provisions of the law in regard to supplementary proceedings an express provision recognizing the fact that doing business in a location is not residence, because an execution, to form the foundation for the examination of a debtor in such proceedings, may be issued to the sheriff of the county where the judgment debtor has at the time of the commencement of the proceeding a place for the regular transaction of business in person, or to the sheriff of the county where he resides if he is a resident of the state. It is apparent, therefore, that an allegation that a party is doing business is by no means an allegation of residence. Our attention is called to cases where presumptions have been indulged in for the purpose of establishing residence. But presumptions cannot be indulged in to sustain an attachment, because the facts necessary to sustain the attachment must be proved by affidavit to the satisfaction of the judge granting the same; not by presumption, but by affidavit. It would seem, therefore, that the allegations contained in these papers were insufficient to establish residence.

We then come to consider the question as to whether additional papers could be allowed to be filed nunc pro tunc for the purpose of sustaining the attachment. The rule seems to be thoroughly weU settled that, where a motion is made to vacate an attachment upon the papers upon which it was granted, the attachment must stand or fall according to the sufficiency of those papers. Bookbinding Co. v. Hart, 85 N. Y. 500; Bank v. Alberger, 75 N. Y. 179; Yates v. North, 44 N. Y. 271; Smith v. Arnold, 33 Hun, 484; Kahle v. Muller, 57 Hun, 144, 11 N. Y. Supp. 26.

There is another defect in the papers presented, which, although attention has not been called to it by the counsel for the appellant, in view of the conclusion at which we have arrived upon the other branch of the case, we do not think should be passed unnoticed. The allegation is that the source of deponent’s information and belief as to the presentation and protest of the note in question, and the giving of notice, is founded upon a cable received from the correspondent of the deponent’s firm in London. This is wholly insufficient to form any basis of judicial action. The judge granting the attachment must be satisfied by the evidence presented, and he cannot be satisfied by the satisfaction of the affiant. • It is not the plaintiff that is to be satisfied; it is the judge granting the attachment. And there is no judicial reason for the judge’s satisfaction simply because the plaintiff is satisfied, which is all that such an allegation amounts to. The affiant is satisfied of the fact because of the cable; but what is in the cable the court is not informed, and it is impossible for it to tell whether the affiant’s satisfaction is justified by the cable or not. Being a party interested, he may have been satisfied, and have believed without the slightest foundation for any such satisfaction or belief. Where a party alleges upon information and belief, and states, that the sources of his information are certain writings, the court is entitled to know what the writings are, in order to see whether the affiant is justified in his belief or not. In other words, on these applications, facts, not inferences, must be presented. Bank v. Alberger, 78 N. Y. 252; McCulloh v.. Aeby & Co. (Sup.) 9 N. Y. Supp. 361; and other cases might be cited. To sum up the whole matter, it would seem that it is necessary that there should be presented to the court,.upon the face of the papers, facts establishing a reasonably certain right of recovery; and where the existence of certain facts is necessary to a recovery, unless such facts are shown, there is presented no right to recover, nor is any cause of action shown to exist.

Notwithstanding that the main question involved on this appeal has been determined by this court repeatedly, in view of the magnitude of the interests involved, and the interesting argument presented upon the part of the appellant, it has been thought necessary to amplify somewhat, in order that the position of the court might be clearly understood.

The order appealed from should be reversed, with costs, and the motion to vacate the attachment granted, with costs. All concur.