Crandall v. McKaye

13 N.Y. Sup. Ct. 483

• Court: New York Supreme Court
• Decided: January 15, 1876
• Status: Published

Opinion

Beady, J.:

stated, that there was a cause of action in favor of the plaintiffs and against the defendant, arising out of a contract made and executed by the defendant, and by him delivered to the plaintiffs, and which was more particularly set forth in the copy complaint annexed, and which contract was executed and delivered by the defendant to the plaintiffs, in the presence of the deponent. The copy complaint referred to is a transcript of that paper in this action. All the material averments in it are positively made, and it appears from its allegations that the plaintiffs have a cause of action founded on contract, the grounds of which are stated, and the The affidavit on which the attachment was granted in this case amount of which is also averred. The verification appears to have been made by the plaintiff’s agent and attorney in fact, and from personal knowledge of the matters stated ; and he asserts that he has a, better knowledge of the facts and circumstances connected with the contract than either of the plaintiffs, except Eli J. Crandall, who was then absent from the City and County of New York. The question presented is, whether the omission to state the grounds of the claim and its amount, in the affidavit, and to make the complaint a part of it by express words therefor, does not render that paper insufficient to sustain the attachment. By section 229 of the Code, the warrant of attachment may be issued whenever it shall appear by affidavit that a cause of action exists, specifying the amount of the claim and the grounds thereof. The language is, “ whenever it shall appear by affidavit; ” and all the prerequisites did appear by the affidavit in this case, on which the attachment was granted. The details were in the complaint, and a copy of it was annexed, which revealed to the judge considering the applicatiou for the process what they were, and from which the necessary conclusions could be drawn. The complaint could be used as an affidavit (Palmer v. Hussey, 59 N. Y., 647), and we do not understand why a sworn- copy may not be employed in the same way. It becomes necessarily a part of the affidavit, when annexed and referred to, as it was in this case; and referred to for a full statement of the cause of action, as it was alleged to. exist. It could not be said, after reading the affidavit and complaint, that it did not appear that a cause of action existed in favor of the plaintiffs against the defendant. There was quite enough to satisfy the judicial mind, of the existence of all the necessary elements demanding the exercise of its authority ; and the judge granting the process was, therefore, justified in doing so upon the papers presented. We do not mean to be understood as deciding that this mode of procedure is the best that might be adopted. We think it would be better to embrace in the affidavit all the necessary facts; or, if resort must be had to it, to annex the original complaint, and not a copy. ,

Order affirmed, with ten dollars costs and disbursements.

Daniels, J., concurred.

Ordered accordingly.