American Trading Co. v. Bedouin Steam Navigation Co.

Appellate Terms of the Supreme Court of New York

American Trading Co. v. Bedouin Steam Navigation Co.

48 Misc. 624, 96 N.Y.S. 271

CourtAppellate Terms of the Supreme Court of New York

DecidedJuly 1, 1905

StatusPublished

Cited by1 cases

This text of 48 Misc. 624 (American Trading Co. v. Bedouin Steam Navigation Co.) is published on Counsel Stack Legal Research, covering Appellate Terms of the Supreme Court of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

American Trading Co. v. Bedouin Steam Navigation Co., 48 Misc. 624, 96 N.Y.S. 271 (N.Y. Ct. App. 1905).

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Opinion

Scott, J.

In order to obtain a warrant of attachment, it was necessary for plaintiff to show, not merely to allege, that defendant is a foreign corporation. Such fact may be said to be shown, if it is positively alleged by some person who may be deemed to have personal knowledge upon the subject, so that his statement can be accepted as evidme- f the fact. Ladenburg v. Commercial Bank, 5 App. Div. 219. It cannot be said to be so shown when the person making the allegation, although he may do so positively, as of his own knowledge, is evidently and obviously not in a position to possess personal knowledge upon the subject. James v. Signell, 60 App. Div. 75. The affiant swears that he is in the employ of plaintiff and is manager for its hemp department. This fact may lend some color to his averment that he has personal knowledge of the purchase of hemp in the Philippine Islands and its shipment from Manila, although that does not appear wholly probable; but it certainly lends no color, to the statement that he has personal knowledge of the fact and place of incorporation of the owner of the steamship by which the hemp was conveyed from Manila to New York. It may he that he is quite right in saying that defendant owns the steamship and it may even be that his belief on that [625]*625subject is based on evidence which, if submitted to the court, would be held to prove the fact, at least prwna facie, but he does not submit such evidence and contents himself with saying that he has personal knowledge of a fact which, under the circumstances, is so improbable that we are forced to conclude that he made the statement inadvertently and without precise appreciation of the effect of his statement. Yet there is no other evidence of the vital fact that defendant is a nonresident corporation.

The order appealed from must be reversed, with ten dollars costs and disbursements, and the motion to vacate the attachment granted, with ten dollars costs.

Gildersxeeve and MaoLeah, JJ., concur.

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

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Scott, J.

In order to obtain a warrant of attachment, it was necessary for plaintiff to show, not merely to allege, that defendant is a foreign corporation. Such fact may be said to be shown, if it is positively alleged by some person who may be deemed to have personal knowledge upon the subject, so that his statement can be accepted as evidme- f the fact. Ladenburg v. Commercial Bank, 5 App. Div. 219. It cannot be said to be so shown when the person making the allegation, although he may do so positively, as of his own knowledge, is evidently and obviously not in a position to possess personal knowledge upon the subject. James v. Signell, 60 App. Div. 75. The affiant swears that he is in the employ of plaintiff and is manager for its hemp department. This fact may lend some color to his averment that he has personal knowledge of the purchase of hemp in the Philippine Islands and its shipment from Manila, although that does not appear wholly probable; but it certainly lends no color, to the statement that he has personal knowledge of the fact and place of incorporation of the owner of the steamship by which the hemp was conveyed from Manila to New York. It may he that he is quite right in saying that defendant owns the steamship and it may even be that his belief on that [625]*625subject is based on evidence which, if submitted to the court, would be held to prove the fact, at least prwna facie, but he does not submit such evidence and contents himself with saying that he has personal knowledge of a fact which, under the circumstances, is so improbable that we are forced to conclude that he made the statement inadvertently and without precise appreciation of the effect of his statement. Yet there is no other evidence of the vital fact that defendant is a nonresident corporation.

The order appealed from must be reversed, with ten dollars costs and disbursements, and the motion to vacate the attachment granted, with ten dollars costs.

Gildersxeeve and MaoLeah, JJ., concur.

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

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48 Misc. 624, 96 N.Y.S. 271, Counsel Stack Legal Research, https://law.counselstack.com/opinion/american-trading-co-v-bedouin-steam-navigation-co-nyappterm-1905.

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