Reynolds v. Bean

138 N.Y.S. 1104

• Court: Appellate Terms of the Supreme Court of New York
• Decided: December 9, 1912
• Status: Published

Opinion

GERARD, J.

-Section 3169 of the Code provides that, among the things necessary to be shown in order to obtain an attachment, the affidavit must show that the plaintiff is entitled to recover a sum stated therein “over and above all counterclaims known to the plaintiff.” In the case at bar the affidavit stated “that deponent is justly entitled to recover from defendant the sum of $5,000 over and above all counterclaims known to defendant.”-

There are certain cases that hold that where a plaintiff himself makes the affidavit, and swears that there are no counterclaims existing in favor of defendant, it is' not necessary to add the words “known to plaintiff,” and that the only requirement is that there be proper legal proof that no counterclaim existed. Mallary v. Allen, 7 Civ. Proc. R. 287. But here no such proof is given. The affidavit is fatally defective, and neither the fact that the court may think that plaintiff meant to say “plaintiff,” and not “defendant,” nor the fact that Waite’s Practice, 1912 edition, in giving the form of the affidavit, makes the same mistake, can supply the want of the allegation required by the Code.

The order appealed from should be affirmed, with $10 costs and disbursements. All concur.