N. Dain's Sons Co. v. Thomas McNally Co.

New York Supreme Court

N. Dain's Sons Co. v. Thomas McNally Co.

65 Misc. 161, 119 N.Y.S. 625

DecidedNovember 15, 1909

StatusPublished

This text of 65 Misc. 161 (N. Dain's Sons Co. v. Thomas McNally Co.) 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

N. Dain's Sons Co. v. Thomas McNally Co., 65 Misc. 161, 119 N.Y.S. 625 (N.Y. Super. Ct. 1909).

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Opinion

Tompkins, J.

Under a long line of authorities the allegation in the affidavit of Frank M. Dain that the defendant is a foreign corporation, without giving the source of affiant’s knowledge, or showing facts justifying him in making averment based upon personal knowledge, is insufficient; and for that reason the court lacked jurisdiction to grant the warrant of attachment.

The courts have held that a warrant of attachment may be amended to make it conform to the facts stated in the affidavit, but I find no authority for an amendment by an affidavit supplying, facts that were essential to the court’s exercise of jurisdiction in the first instance. On the con[162]*162trary, the authorities seem to be the other way. Because of the insufficiency of the affidavits upon which the warrant of attachment was granted I must grant the motion.

Motion granted.

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Tompkins, J.

Under a long line of authorities the allegation in the affidavit of Frank M. Dain that the defendant is a foreign corporation, without giving the source of affiant’s knowledge, or showing facts justifying him in making averment based upon personal knowledge, is insufficient; and for that reason the court lacked jurisdiction to grant the warrant of attachment.

The courts have held that a warrant of attachment may be amended to make it conform to the facts stated in the affidavit, but I find no authority for an amendment by an affidavit supplying, facts that were essential to the court’s exercise of jurisdiction in the first instance. On the con[162]*162trary, the authorities seem to be the other way. Because of the insufficiency of the affidavits upon which the warrant of attachment was granted I must grant the motion.

Motion granted.

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Bluebook (online)

65 Misc. 161, 119 N.Y.S. 625, Counsel Stack Legal Research, https://law.counselstack.com/opinion/n-dains-sons-co-v-thomas-mcnally-co-nysupct-1909.