Gribbon v. Ganss

New York Supreme Court

Gribbon v. Ganss

18 N.Y.S. 608, 45 N.Y. St. Rep. 825, 64 Hun 632

CourtNew York Supreme Court

DecidedApril 14, 1892

StatusPublished

Cited by1 cases

This text of 18 N.Y.S. 608 (Gribbon v. Ganss) is published on Counsel Stack Legal Research, covering New York Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Gribbon v. Ganss, 18 N.Y.S. 608, 45 N.Y. St. Rep. 825, 64 Hun 632 (N.Y. Super. Ct. 1892).

Pincite

Opinion

Per Curiam.

We do not think that the objection that there is nothing in-the affidavit of Gilmour showing that the affiant had personal knowledge of the facts set forth in his affidavit is well founded. He swears that he is the manager of the plaintiff’s business, and that as such manager he has general-charge of and supervision over all the affairs connected with the plaintiff's-business. Being such manager, and having such charge of and supervision over the plaintiff’s affairs, he may fairly be presumed to have personal knowledge of the matters set forth in his affidavit.

Another objection, however, is taken to the affidavit which we think is well founded, and will require an affirmance of the order appealed from. The Code¹ requires that the affidavit upon which the attachment is issued must show that the plaintiff is entitled to recover the sum stated therein over and above all counter-claims known to him. Gilmour swears that the plaintiff is justly entitled to recover from the defendants the sum of $394.85over and above all counterclaims known to the plaintiff or to deponent; and that de[609]*609panent is familiar with the plaintiff’s business, and particularly with the transactions had with the defendant, and, if there were any counter-claims, he would know of the same. When an application for an attachment is made, the best evidence obtainable of the facts upon which the application is based must be presented to the judge. The best evidence in this case would have been the affidavit of the plaintiff himself as to counterclaims known to him. Instead of that, the affidavit of liis manager was presented, and no excuse or reason is given why the affidavit of the plaintiff is not produced. It is not stated that the plaintiff resides or does business abroad, and, for aught that appears from the affidavit, he may have been present in the city of New York, and in company with the affiant, at the time the affidavit was made. The court is entitled to the best evidence in the first instance, or an explanation why it is not furnished. The order appealed from should be affirmed, with $10 costs and disbursements.

Free access — add to your briefcase to read the full text and ask questions with AI

Per Curiam.

We do not think that the objection that there is nothing in-the affidavit of Gilmour showing that the affiant had personal knowledge of the facts set forth in his affidavit is well founded. He swears that he is the manager of the plaintiff’s business, and that as such manager he has general-charge of and supervision over all the affairs connected with the plaintiff's-business. Being such manager, and having such charge of and supervision over the plaintiff’s affairs, he may fairly be presumed to have personal knowledge of the matters set forth in his affidavit.

Another objection, however, is taken to the affidavit which we think is well founded, and will require an affirmance of the order appealed from. The Code¹ requires that the affidavit upon which the attachment is issued must show that the plaintiff is entitled to recover the sum stated therein over and above all counter-claims known to him. Gilmour swears that the plaintiff is justly entitled to recover from the defendants the sum of $394.85over and above all counterclaims known to the plaintiff or to deponent; and that de[609]*609panent is familiar with the plaintiff’s business, and particularly with the transactions had with the defendant, and, if there were any counter-claims, he would know of the same. When an application for an attachment is made, the best evidence obtainable of the facts upon which the application is based must be presented to the judge. The best evidence in this case would have been the affidavit of the plaintiff himself as to counterclaims known to him. Instead of that, the affidavit of liis manager was presented, and no excuse or reason is given why the affidavit of the plaintiff is not produced. It is not stated that the plaintiff resides or does business abroad, and, for aught that appears from the affidavit, he may have been present in the city of New York, and in company with the affiant, at the time the affidavit was made. The court is entitled to the best evidence in the first instance, or an explanation why it is not furnished. The order appealed from should be affirmed, with $10 costs and disbursements.

Cite This Page — Counsel Stack

Bluebook (online)

18 N.Y.S. 608, 45 N.Y. St. Rep. 825, 64 Hun 632, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gribbon-v-ganss-nysupct-1892.

Opinion

Related

Cite This Page — Counsel Stack