Thompson v. Best

4 N.Y.S. 229, 21 N.Y. St. Rep. 103, 51 Hun 641, 1889 N.Y. Misc. LEXIS 258

Opinions

Van Brunt, P. J.

The allegations in the affidavit are principally made upon information and belief. This affidavit states the conclusions which the affiant has formed from the reading of documents which he alleges he has in his possession. The court has no means of judging of the soundness of these conclusions, as it is not put in possession of any of the evidence upon which they are founded. The court is therefore asked to issue an order of arrest simply because the attorney of the plaintiff believes that he has evidence in his possession which tends to establish a ground of arrest. It has been sometimes supposed that the function of determining whether the evidence is sufficient to justify this extreme remedy has by the law been devolved upon the court, and not upon the attorney. The case of Wilmerding v. Cunningham, 65 How. Pr. 344, clearly condemns as insufficient an affidavit whose allegations are simply made upon information and belief, without disclosing the evidence upon which this belief is founded. The very office of an affidavit is to present evidence to the court from which it may draw its conclusions as to the fact, thereby differing from a complaint in which evidence should not be alleged, but conclusions of fact to be established by evidence. The order appealed from should be reversed, with $10 costs and disbursements, and the order of arrest.

Brady, J., concurs.