Miller v. Jones

152 N.Y.S. 739

Opinion

BIJUR, J.

The attachment was obtained on an affidavit relying on a cause of action set forth in the complaint referred to in the affidavit as “hereto annexed.” It further alleged that plaintiff was entitled to recover the sum of money over and above all counterclaims known to the plaintiff, and that the defendants are not residents of the city of New York, but reside in Louisville, Ky., and that the goods for the price of which the action was brought were delivered to defendants in Louisville, Ky., and where they have their distillery and principal office for the the transaction of business. The complaint annexed is in the ordinary form of a complaint in an action for goods sold and delivered.

[1] Although defendants make a number of objections to the complaint and affidavit, the learned judge below apparently found no merit in any except one, namely, that the allegation of nonresidence was insufficient. This is to be inferred from the citation of two authorities at the foot of the order, namely, Dain’s Sons Co. v. Thomas McNally Co., 137 App. Div. 857, 122 N. Y. Supp. 964; also Pettit v. United States Motor Co., 77 Misc. Rep. 277, 136 N. Y. Supp. 260. This court has, however, had occasion to point out in Geduld v. B. & O. Co., 70 Misc. Rep. 495, 127 N. Y. Supp. 317, that an allegation of non-residence made by a principal in the transaction, and not by his assignee, is presumed to be made upon knowledge, and is sufficient proof, though standing, alone, of the fact to sustain an attachment.

[2] As to the lack of merit in the other points urged by the defendant, we agree with the learned trial judge.

Order reversed, with $10 costs and disbursements. All concur.