Myra B. Martin, Respondent, v. Aluminum Compound Plate Company, Appellant

Myra B. Martin, Respondent, v. Aluminum Compound Plate Company, Appellant. Attachment —positive allegations in an affidavit (as to matters stated on information and belief in the complaint) unaccompanied by circumstances showing personal knowledge — the defect is not merely an irregularity which must be specified in the moving papers. In an action upon a claim for professional services rendered by attorneys, brought by a woman to whom the claim had been assigned, an attachment should not be granted upon the ground that the defendant is a foreign corporation, where it appears that, although all the allegations of the complaint were made by the plaintiff upon information and belief, the statements contained in the affidavit used on the application for the attachment were made, in form, upon her positive knowledge, and it is not disclosed how the plaintiff came te know of the performance of the services. The defect in the affidavit is a matter of substance, and not a mere irregularity' which, under rule- 37 of the General Rules of Practice, is not available upon a motion to vacate the attachment unless specified in the moving papers. Appeal by tlie defendant, the Aluminum Compound Plate Gom■pany, from an order of'the Supreme Court, made at the New York . Special Term and entered in the office of the clerk of the county' of New Yorlc on the 9th day of- October, 1899, denying its motion to vacate an attachment against its property, which attachment was ■obtained by the plaintiff upon the ground that, the defendant was a foreign corporation. Philo P. Safford, for the appellant. Fred. C. Hanford, for the respondent. [MAJORITY — Barrett, J.:] Barrett, J.: This case is directly within the rule laid down in Einstein v. Climax Cycle Company (13 App. Div. 624) and Hoormann v. Climax Cycle Company (9 id. 579). As in these cases, the plaintiff here is an •assignee of the claim sued upon. The claim is for legal services rendered to the defendant by a firm of attorneys. How this lady, Myra B. Martin, came to know anything about the performance of these services is not disclosed. The papers upon which the attachment here was granted present an extreme illustration of the justice of the rule laid down in the cases cited. In her complaint the plaintiff states ail the averred facts expressly upon information and belief. She then omits the latter qualification in her affidavit.- It-is apparent that what she thus states in form upon knowledge is in reality stated upon the same information and belief to which she referred in her complaint. If, however, in verifying the two documents at- the same time, she advisedly verified one upon knowledge and the other upon information and belief, we have an additional reason for strictly applying the wholesome rule of the cases cited, namely,, that the mere averment of facts as upon personal knowledge is not sufficient,.unless the circumstances are such-that it can fairly be inferred that the affiant had' personal knowledge of the facts so positively stated. No circumstances are disclosed in the affidavit or papers here from which such an inference can be drawn. The only other point presented by the respondent is, that the defect in the affidavit to which we have referred, was not specified in the appellant’s notice of motion. There is no -merit in this objection. The defect was not an irregularity, but matter of substance. It went to the sufficiency of the affidavit, and related to the merits. Rule 37 of the General Rules of Practice was, therefore, inapplicable. ’(Andrews v. Schofield, 27 App. Div. 93.) The order should be reversed, with ten dollars costs and disbursements, and the motion granted, with ten dollars costs. Van Brunt, P. J., Rumsey, Patterson and O’Brien, JJ.,. concurred. Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.