Charles Hayden and Galen L. Stone, Appellants, v. "Patrick" Mullins, the First Name of Defendant Being Unknown, Respondent

Charles Hayden and Galen L. Stone, Appellants, v. “Patrick” Mullins, the First Name of Defendant Being Unknown, Respondent. Attachment—when a positive allegation of the defendant’s non-residence will he presumed to he made upon the affiant’s personal knowledge. An affidavit used upon a motion for a warrant of attachment averred positively that the defendant was a non-resident. The transaction was personal between the affiant, who was a member of a firm which brought the suit, and the defendant, from whom the affiant had received instructions and for whom he had purchased certain stocks. Held, that it would he inferred that the affiant had personal knowledge upon the subject of the defendant’s non-residence. Appeal by the plaintiffs, Charles Hayden and another, from an order of the Supreme Court, made at the Few York Special Term and entered in the office of the clerk of the county of Few York oil the 14th day of August, 1902, vacating a warrant of attachment - theretofore obtained by the plaintiffs. The affidavit on which the attachment was granted alleges “ that the defendant, whose Christian name is unknown to plaintiffs,-but who signs himself ‘P. Mullins,’ was a resident of Butte, in the State of Montana, United States of America, and was a non-resident of the State of New York.” Hector M. Hitchings, for the appellants. M. E. Harby, for the respondent. [MAJORITY — Hatch, J.:] Hatch, J.: The warrant of attachment was procured to be issued September 28, 1901. The -defendant took no steps therein until August 11, 1902, when he moved to vacate the same for irregularity in the papers upon which the attachment was granted. The claimed irregularity consists in the insufficiency of the affidavit upon which the attachment was based, the substantial ground, and the one now relied upon to sustain the order vacating the attachment, being that no facts or circumstances are stated from which the court could infer that the affiant had personal knowledge of the non-residence of the defendant. The statement contained in the affidayit is of positive knowledge of the residence of the defendant. The transaction out of which arises the claimed c:. use of action was personal to the parties thereto; there was no intervention of third parties, and the affiant is not the representative of a corporation ; nor was he an agent in the transaction, except as he is a member of the firm prosecuting the action. The affiant, therefore, stands in the relation of an acting principal in the transaction, out of which the cause of action arose. Under such circumstances, the correct rule of interpretation seems to be “ that statements in'affidavits will be presumed to liave been made on personal knowledge, unless stated to have been on information and belief, and unless it appears affirmatively and by fair inference that they could not have been and were not on such knowledge.” (Crowns v. Vail, 51 Hun, 204; Ladenburg v. Commercial Bank, 5 App. Div. 219; Lacker v. Dreher, 38 id. 75.) In the affidavit which is now attacked it appears that the affiant was not only a principal in the transaction, but he was in communication with the defendant; had received instructions for the purchase of stock on account of the defendant, and, upon breach of contract by him, had communicated a notice of the sale of such stock. It is fair to infer, therefore, that the plaintiff derived his knowledge of the defendant’s residence by means of these communications or otherwise ; and this, coupled with the positive statement of the affiant, as of personal knowledge, is sufficient to support the affidavit within the rule of the foregoing cases. There is a class of cases, of which Hoormann v. Climax Cycle Co. (9 App. Div. 579) is a pertinent illustration, where it has been held that the mere averment of facts on personal knowledge in an affidavit made to procure an attachment is not sufficient unless circumstances are stated from which the inference can fairly be drawn that the affiant has personal knowledge of the facts which he avers; but in this case, as well as those in that class of cases, there was the intervention of an assignee of the claim sought to be enforced, or the person stood in the relation of an agent, or attorney, or was the representative of a corporation, or acted in some other form in a representative capacity, and not as a principal in the original transaction. Under such circumstances it must be made to appear that the affiant is possessed of some information from which it may be fairly inferred that he has knowledge upon the subject of his positive averment. The distinction is well stated in Anthony & Co. v. Fox (53 App. Div. 200, 203). It is evident, therefore, that Hoormann v. Climax Cycle Co. (supra) and that class of cases are not controlling of the affidavit now under consideration. The case of Andrews v. Schofield (27 App. Div. 90) and James.v. Signell (60 id. 75), relied upon by the court at Special Term, have no application to the case at bar. In the first of these cases the affidavit was held insufficient for the reason that the statement as to residence and the amount of the claim was based purely upon hearsay statements, and were insufficient as tending to establish a cause of action. In the second case the .affidavit was made by a representative ; no facts were stated from which the court could see or infer that the affiant had personal knowledge of such facts; in addition thereto no cause of action was stated in the moving papers; and finally the cause of action attempted to be stated was one which did not authorize the issuance of an attachment. It follows that the order vacating the attachment should he reversed,, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs. Van Brunt, P. J., O’Brien, Ingraham and McLaughlin, JJ., concurred. Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.