Essex County National Bank v. Johnson

16 N.Y.S. 71, 40 N.Y. St. Rep. 919, 1891 N.Y. Misc. LEXIS 314

Opinion

Per Curiam.

We see no reason for disturbing the attachment granted in this action. Most of the allegations as to which the knowledge of the president of the bank in making the affidavit is challenged were entirely immaterial, and need not have been made in order to make a perfect cause of action. As to the question of payment, or whether the note was taken for value before or after maturity, those are affirmative defenses, which it is not necessary for the plaintiff to rebut in the first instance. The president of the bank at the time of making the affidavit states that there are no counter-claims to the cause of action set up in the affidavit known either to the plaintiff or to deponent; and this is a compliance with the Code. There is no requirement which compels the party making the affidavit to have knowledge of all the transactions of the plaintiff for the six or twenty years prior to the time of the application for the attachment during which the counter-claims might have arisen. The position of the affiant was such that he would be presumed to have knowledge in reference to the claims which might exist against the corporation which he represented at the time of the commencement of the action. We think, therefore, that the order should be affirmed, with $10 costs and disbursements.