Hingston v. Miranda

9 N.Y. St. Rep. 80

Opinion

Per Curiam.

The affidavit on which this attachment was issued was whoUy insufficient as proof of the facts upon which alone the law aEows so harsh a proceeding to be taken by a creditor against his debtor. It contains no sworn evidence that a debt has been created or that the amount claimed is due to the plaintiff over and above all counter-claims, and is no more than a repetition of unsworn statements made by the plaintiff or in his behalf to the person making the affidavit. In fact it does not amount to as much as that, for the statements themselves have not been set forth in the affidavit showing that they had been followed by the person who made it. The case is clearly within those of DeWeerth v. Feldner (16 Abb., 295); Marine National Bank v. Ward (35 Hun, 395); Gribbon v. Bach (35 Hun, 541); and Buhl v. Ball (41 Hun, 61; 2 N. Y. State Rep., 270).

The order appealed from must, therefore, be reversed, with ten dollars costs and disbursements.