Thompson v. Best

New York Supreme Court

Thompson v. Best

2 N.Y.S. 220, 1888 N.Y. Misc. LEXIS 106

CourtNew York Supreme Court

DecidedJune 11, 1888

StatusPublished

Cited by1 cases

This text of 2 N.Y.S. 220 (Thompson v. Best) 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

Thompson v. Best, 2 N.Y.S. 220, 1888 N.Y. Misc. LEXIS 106 (N.Y. Super. Ct. 1888).

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Opinion

Lawrence, J.

The motion in this case is to vacate the order on the ground of irregularity. It proceeds on the ground that the affidavit upon which the order was granted is entirely insufficient to support it. The cases cited by the counsel for the plaintiff, under rule 37 of this court, have therefore no application.

The cause of action stated in the complaint is not for an accounting, but to recover a certain sum of money alleged to be due to the plaintiff, and which, after demand, the defendant has refused to pay over, and has converted to his own use. It is claimed by the defendant that the affidavit is insufficient, because it does not appear that the statements made by the attorney verifying it are borne out by the letters, statements, papers, and communications which are averred to be the sources of the knowledge of said attorney; and also that there are statements in the complaint which are inconsistent with those in the affidavit. I am well aware of the rule that where an affidavit is made on information and belief, it is incumbent upon the affiant to disclose the sources of information, and also of the strictness with which that rule has been applied in cases of arrest and attachment. But those cases do not go to the extent of holding that it is always incumbent, where the affidavit is made by an agent or attorney, that copies of the letters or communications from the principal or client should be attached to the affidavit; and it seems to me that the rule will be complied with if, after stating such sources, the affiant makes out a case which would, if verified by the principal, warrant the issuing of an order of arrest. See Gribbon v. Back, 35 Hun, 541. I am therefore of the opinion that the facts stated in the affidavit were sufficient to make out a prima facie case, and that no ground exists for vacating the same in the absence of any explanation of those facts by the defendant.

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Lawrence, J.

The motion in this case is to vacate the order on the ground of irregularity. It proceeds on the ground that the affidavit upon which the order was granted is entirely insufficient to support it. The cases cited by the counsel for the plaintiff, under rule 37 of this court, have therefore no application.

The cause of action stated in the complaint is not for an accounting, but to recover a certain sum of money alleged to be due to the plaintiff, and which, after demand, the defendant has refused to pay over, and has converted to his own use. It is claimed by the defendant that the affidavit is insufficient, because it does not appear that the statements made by the attorney verifying it are borne out by the letters, statements, papers, and communications which are averred to be the sources of the knowledge of said attorney; and also that there are statements in the complaint which are inconsistent with those in the affidavit. I am well aware of the rule that where an affidavit is made on information and belief, it is incumbent upon the affiant to disclose the sources of information, and also of the strictness with which that rule has been applied in cases of arrest and attachment. But those cases do not go to the extent of holding that it is always incumbent, where the affidavit is made by an agent or attorney, that copies of the letters or communications from the principal or client should be attached to the affidavit; and it seems to me that the rule will be complied with if, after stating such sources, the affiant makes out a case which would, if verified by the principal, warrant the issuing of an order of arrest. See Gribbon v. Back, 35 Hun, 541. I am therefore of the opinion that the facts stated in the affidavit were sufficient to make out a prima facie case, and that no ground exists for vacating the same in the absence of any explanation of those facts by the defendant.

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Bluebook (online)

2 N.Y.S. 220, 1888 N.Y. Misc. LEXIS 106, Counsel Stack Legal Research, https://law.counselstack.com/opinion/thompson-v-best-nysupct-1888.

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