Philip Becker & Co. v. Bevins

102 N.Y.S. 144

Opinion

WHEELER, J.

The attachment was granted principally upon the affidavit of-an Officer of the plaintiff, stating'the .action was brought to recover for goods sold to the defendant, and that the sale was made and credit given upon the strength of an alleged false statement of the financial condition of the defendant furnished to R. G. Dun & Co. and by R. G. Dun & Co. given to the plaintiff. There was furnished to the justice granting the attachment no affidavit by any officer or agent of R. G. Dun & Co. as to the rendering of the statement in question to that concern, nor was there any statement in the moving affiant explaining the omission to supply such an affidavit, or stating the sources of the affiant’s information that any such statement had been in fact made.

The recent case of Price v. Levy, 93 App. Div. 274, 87 N. Y. Supp. 740, is practically identical with this in its facts and is decisive of this motion. In that case reliance was put on a statement made to R. G. Dun & Co. ■ It was there held that the moving papers were insufficient to justify the granting of an order of arrest, as there was nothing to show that the affiant had any personal knowledge that the defendants made or signed the statement attributed to them.

For these reasons the attachment should be vacated, with $10 costs of motion, but without prejudice to apply for a new attachment upon further papers.