Gumbes v. Hicks

116 A.D. 120, 101 N.Y.S. 741, 1906 N.Y. App. Div. LEXIS 2615

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 20, 1906
• Status: Published

Opinions

Cochrane, J.:

. Primarily an application for a warrant of attachment should be based on legal evidence. Hearsay evidence is substituted therefor only in cases of necessity, and the courts have been strict where stich necessity exists that the source of the evidence be given.as well as the reason why primary evidence is not furnished.

“ Where a party alleges upon information and belief, and states that the sources of his information are certain writings, the court is entitled to know what the writings are, in order to see whether the affiant is justified in his belief or not.” (ladenburg v. Commercial Bank, 87 Hun, 269, 275 ; affd., 146 N. Y. 406 ; Barrell v. Todd, 65 App. Div. 22, 26.)

It appears from the affidavit on which this attachment was based that the sources of the affiant’s information and the grounds of his belief are, among other things, a telephone conversation between him and Conlon, one of the. plaintiffs, in which the facts alleged in the affidavit on information and belief were related in detail by said Conlon, and that on the day following such telephone conversation the affiant received a letter from said Conlon repeating the substance of the matters alleged on information and belief. If this affidavit were based solely on the telephone communication it is possible that the facts are sufficient to identify the plaintiff Conlon as the person giving the information, but, according to the affidavit, the information 'was derived also from a letter which was received from Conlon and which was in the possession of the affiant, and which repeated in substance the information related to the affiant over the telephone. It admits of little doubt that this letter is better evidence than the telephone communication, and, the failure to produce the letter is a.failure to present the best information to the court. Within the principle above cited this letter should have been presented in order that the judge might determine whether the affiant’s belief in the facts stated by him in his affidavit as the grounds of the attachment was well founded.

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

Parker, P. J., and Smith, J., .concurred; Chester, J., dissented in an opinion in which Kellogg, J., concurred.