McGovern v. Christian Bahnsen, Inc.

New York Supreme Court

McGovern v. Christian Bahnsen, Inc.

153 Misc. 224, 274 N.Y.S. 633, 1934 N.Y. Misc. LEXIS 1709

DecidedOctober 11, 1934

StatusPublished

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Bluebook

McGovern v. Christian Bahnsen, Inc., 153 Misc. 224, 274 N.Y.S. 633, 1934 N.Y. Misc. LEXIS 1709 (N.Y. Super. Ct. 1934).

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Opinion

Frankenthaler, J.

The case of Progressive Knitting Worhs, Inc., v. Step-in-All Underwear Corp. (226 App. Div. 8) appears to be distinguishable from the instant one. Examination of the record on appeal in that case reveals that the papers upon which the order of publication was founded included an affidavit to the effect that the affiant knew of his own knowledge that the defendant, a foreign corporation, maintained no offices or factory within the State of New York, and that none of its officers were within the State of New York, or doing business for the corporation within the State. The affidavit upon which the. order of publication in the present action was based contained no similar statement. The fact that no record of any office of the defendant was found in certain directories is insufficient to establish the non-existence of such an office. The statement that the affiant “ is informed that said defendant has no office within the State of New York for the [225]*225transaction of business ” is pure hearsay. The sources or grounds of the statement are not stated in the affidavit. As the defect is jurisdictional it may not be cured by additional affidavits filed in opposition to the present motion to vacate.

The motion to vacate the order of publication as well as fche warrant of attachment and all levies thereunder is granted.

Settle order.

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Frankenthaler, J.

The case of Progressive Knitting Worhs, Inc., v. Step-in-All Underwear Corp. (226 App. Div. 8) appears to be distinguishable from the instant one. Examination of the record on appeal in that case reveals that the papers upon which the order of publication was founded included an affidavit to the effect that the affiant knew of his own knowledge that the defendant, a foreign corporation, maintained no offices or factory within the State of New York, and that none of its officers were within the State of New York, or doing business for the corporation within the State. The affidavit upon which the. order of publication in the present action was based contained no similar statement. The fact that no record of any office of the defendant was found in certain directories is insufficient to establish the non-existence of such an office. The statement that the affiant “ is informed that said defendant has no office within the State of New York for the [225]*225transaction of business ” is pure hearsay. The sources or grounds of the statement are not stated in the affidavit. As the defect is jurisdictional it may not be cured by additional affidavits filed in opposition to the present motion to vacate.

The motion to vacate the order of publication as well as fche warrant of attachment and all levies thereunder is granted.

Settle order.

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Bluebook (online)

153 Misc. 224, 274 N.Y.S. 633, 1934 N.Y. Misc. LEXIS 1709, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mcgovern-v-christian-bahnsen-inc-nysupct-1934.

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