Francis M. Gumbes and William J. Conlon, Respondents, v. Charles M. Hicks and Others, Appellants

Francis M. Gumbes and William J. Conlon, Respondents, v. Charles M. Hicks and Others, Appellants. Third Department, November 20, 1906. Attachment — when moving affidavit by attorney insufficient. An application for a warrant of attachment should primarily be based upon legal . evidence. Hearsay evidence is considered only in oases of necessity. When the moving affidavit is made by the plaintiffs attorney who states that those matters alleged upon information and belief were known to the deponent by telephone conversations with the non-resident plaintiff, which' communica- ■ tians were confirmed by a letter subsequently received from the plaintiff, the letter is the better evidence and the failure to produce it so, that the court may ' determine whether the grounds of belief were well founded, is ground for vacating the attachment. Chester and Kellogg, JJ., dissented, with-opinion, Appeal by the defendants,. Charles M. Hicks and others^ from an order, made by the county judge of Broome county and entered in the office of the clerk of the county of Broome on the 6th day of April, 1906, denying the defendants’ application to vacate a warrant of attachment against their property, which application was inad^ on the papdrs on which said warrant was granted. The warrant of attachment was granted because of the non-residence of the defendants. The plaintiffs are also non-residents. The affidavit on which the warrant was granted was made by one of the plaintiffs’ attorneys residing in Binghamton, FT. Y. After stating on information and belief the facts constituting .the cause of action and the non-residence of the defendants the affidavit contains the • following statements : “ Tile deponent further show;s that' the sources of Ms information, and the grounds of Ms belief, as to the foregoing matters alleged upon information and belief, are as- follows: On or about the 7th day of December, 1905, deponent’s said firm received a letter from the plaintiff William J. Conlon, who is one of their correspondents in the City of Philadelphia, .making inquiry as to the requisites for taking out an attachment under the laws of the State of New York, and said letter came to deponent’s attention in 'person and was answered by him, and that thereafter •and on the 6th day of January, .1906, deponent had a long telephone conversation with tlie said William J. Conlon in the City of Philadelphia, in the course, of which conversation the plaintiffs’ said\ claim as hereinbefore set forth and the other facts herein alleged on information and belief were related to deponent in detail by said Conlon. That on the 7th day of January, 1906, deponent received a further letter.from the said William J. Conlon, repeating in writing the substance of the matters hereinbefore set forth on information and belief.” Albert S. Barnes and Hiram Mintz, for the appellants. C. H. Hitchcock, for the respondents. [MAJORITY — Cochrane, J.:] Cochrane, J.: . Primarily an application for a warrant of attachment should be based on legal evidence. Hearsay evidence is substituted therefor only in cases of necessity, and the courts have been strict where stich necessity exists that the source of the evidence be given.as well as the reason why primary evidence is not furnished. “ Where a party alleges upon information and belief, and states that the sources of his information are certain writings, the court is entitled to know what the writings are, in order to see whether the affiant is justified in his belief or not.” (ladenburg v. Commercial Bank, 87 Hun, 269, 275 ; affd., 146 N. Y. 406 ; Barrell v. Todd, 65 App. Div. 22, 26.) It appears from the affidavit on which this attachment was based that the sources of the affiant’s information and the grounds of his belief are, among other things, a telephone conversation between him and Conlon, one of the. plaintiffs, in which the facts alleged in the affidavit on information and belief were related in detail by said Conlon, and that on the day following such telephone conversation the affiant received a letter from said Conlon repeating the substance of the matters alleged on information and belief. If this affidavit were based solely on the telephone communication it is possible that the facts are sufficient to identify the plaintiff Conlon as the person giving the information, but, according to the affidavit, the information 'was derived also from a letter which was received from Conlon and which was in the possession of the affiant, and which repeated in substance the information related to the affiant over the telephone. It admits of little doubt that this letter is better evidence than the telephone communication, and, the failure to produce the letter is a.failure to present the best information to the court. Within the principle above cited this letter should have been presented in order that the judge might determine whether the affiant’s belief in the facts stated by him in his affidavit as the grounds of the attachment was well founded. The order must be reversed, with ten dollars costs and disbursements, and the motion granted, with ten dollars costs. Parker, P. J., and Smith, J., .concurred; Chester, J., dissented in an opinion in which Kellogg, J., concurred. [DISSENT — Chester, J.] Chester, J. (dissenting): The claim is that the affidavit on which the attachment was granted is insufficient in two respects : First, because the letters referred to are not annexed, and, second, because it is not stated that the affiant knew with whom he had the conversation over the telephone. ■ He states positively that the conversation was with the plaintiff William J. Conlon in the city of Philadelphia without, it is true, stating in so many words that he knew him, but it is said that the plaintiff Conlon is one of the 'correspondents dn the city of Philadelphia of deponent’s firm, which' before such conversation had received a letter from Conlon which was answered by the deponent and that thereafter such conversation was had in the course of which all the facts'stated on information and belief were related to deponent in detail by Conlon. It is also stated that the next day after such conversation deponent received a further letter from Conlon repeating in writing the substance of the matter set forth on information and belief. These facts, I think, furnish a sufficient identification of the plaintiff Conlon as the man with whom the affiant had the conversation over the telephone and distinguish the case from Murphy v. Jack (142 N. Y. 215), where it was held that an affidavit on information and belief was insufficient to support an attachment where the only information was a talk over a telephone with a person with whom the affiant did not state he was acquainted, nor that he recognized his voice, and it did not appear that he in any other way knew who it was talking with him. If the sources of the deponent’s information and the grounds of his belief had been alone the letters referred to in the affidavit they would have been insufficient upon which to procure an attachment without affixing the letters to the affidavit. (Barrell v. Todd, 65 App. Div. 22; Ladenburg v. Commmercial Bank, 87 Hun, 269.) But here the letters were essential only as a means of identifying the person with whom the talk over the telephone was had, and that conversation, which covered in detail the plaintiff’s claim and all the facts stated on information and belief, was the important thing to be considered by the court in determining whether such information and belief were well founded. I think, therefore, that under such circumstances we should not hold that, the absence from the affidavit of the letters was a fatal defect. The order should be affirmed, with ten dollars costs and printing disbursements. Kellogg, J., concurred. Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.