Abdun-Nur v. Arbeed

198 A.D. 795, 191 N.Y.S. 38, 1921 N.Y. App. Div. LEXIS 8182

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 2, 1921
• Status: Published

Opinion

Page, J.:

The plaintiff alleges three causes of action for money had and received, set forth in the form of a common count in common-law pleading. Such .form has been approved as a sufficient statement of a cause of action as against a demurrer.

The affidavit practically states the same ultimate facts without stating evidentiary facts tending to prove the causes of action. We have repeatedly held that: “An affidavit in support of an attachment must contain evidence from which the court can determine that the ultimate facts stated in the pleadings can be substantiated.” (Makepeace v. Dilltown Smokeless Coal Co., 179 App. Div. 662, 664.) The affidavit fails in this particular and the motion should have been granted.

The order should be reversed, with ten dollars costs and disbursements, and the motion granted, with ten dollars costs.

Clarke, P. J., Latjghlin, Dowling and Smith, JJ., concur.

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