Hoormann v. Climax Cycle Co. (9 A.D. 579, 1896)

Williams, J.:

The question involved in this appeal is whether a positive averment of facts, of which it is apparent the deponent, from his situation, could have had no general knowledge, is sufficient proof of such facts to authorize the granting of an attachment.

The affidavit was made July 15, 1896, by the plaintiff, who was-the assignee of the claim in suit, and showed that for eight months last before the making of the affidavit he had been and still was a resident of New York city; that the defendant was a corporation in Illinois, and had its principal place of business in Chicago; that previous to May 14, 1896, at the city of Chicago, the New York Standard Watch Company, a New York corporation, through its agent, sold to the defendant at its request certain goods, wares and merchandise, and delivered the same on May 14,. 1896, to defendant at Jersey City; that the goods were sold at the agreed and reasonable price of $214, which the defendant -promised, to pay; that no part of the purchase price had been pai<| although demanded, and that, previous to the commencement of the action, the claim for such purchase price had been duly assigned for value to the plaintiff. No statement.was made in the affidavit that the plaintiff had personal knowledge of these facts, and no circumstances wera stated tending •to show that he had any such personal knowledge.

It was not stated that before the assignment of the claim the plaintiff had had any relations with- either of the corporations, or knew any officer or agent thereof, not even the agent of the New York corporation who made the alleged sale.

The claim made-by the appellant is that the implication arises from the unqualified allegation of the facts that the plaintiff had personal knowledge of such facts.

This claim cannot be supported upon a review of the authorities. It has frequently been held in this State, and especially by the Supreme Court in the first department, that knowledge will not be presumed from a mere positive averment of the facts, but it must •also appear from the affidavit that such knowledge really existed, by a statement of circumstances from which the inference of knowledge can be fairly drawn.

In Buhl v. Ball (41 Hun, 61) it was held that an affidavit made by the plaintiff’s agent which stated the facts in unqualified terms,, was insufficient when nothing appeared which enabled the court to see how the deponent knew or could have known such facts, or showed the relations between him and the plaintiff to be such as to raise the presumption, from the nature of the agency, that he might have personal knowledge of the facts.

•. In Mo Viclcer v. Gampanimi (5 N. Y. Supp. 577) it was held that •an affidavit made by a son of plaintiff, alleging facts of his own knowledge, but which did not show that the affiant, as agent or ■otherwise, personally conducted the. business, and disclosed no facts ■or circumstances tending 'to show that he had any knowledge, was insufficient.

In Nat. B’way Banh v. Barker (16 N. Y. Supp. 75) it was held that an affidavit made by the plaintiff’s cashier, stating unqualifiedly that notes were- forgeries, was not sufficient in the absence of anything to show that the deponent could have had any personal knowledge on the subject.

In Crowns v. Vail (51 Hun, 204) it was held that the affidavit of one of the plaintiff’s attorneys, stating facts unqualifiedly, but not stating how he could have knowledge of such facts, was insufficient; that the trrue rule was that the statements in affidavits will be presumed to have been made on personal "knowledge * '* * except where it appecured affirmatively, or by fair inference, that they coudd not have been, and were not made on such knowledge And where an affidavit, in respect to a transaction of his client, was made by one who was simply an attorney of record in an action, and, so far as appeared, was only the attorney for that action, the plain inference was that such attorney had no personal knowledge of the facts stated.

In Kahle v. Muller (57 Hun, 144) it was held that an affidavit made by an assignor of the claim sued on, which stated the indebtedness unqualifiedly, but contained no allegation that he had personal knowledge thereof, or facts showing how he could have had Such knowledge, was .insufficient.

In' Manufacturers' National Bank v. Hall (60 Hun, 466; affd., 129 N. Y. 663) it was held that an affidavit made by plaintiff’s attorney in Hew York, upon information furnished by its attorney in another State, it being apparent that neither attorney could have had any personal knowledge of the facts stated, was insufficient.

It is not disputed by appellant’s counsel that the rule was well settled, as we have stated it, prior to the recent decision in this department, in the cases of Ladenburg y. Com. Bank (5 App. Div. 220) and Hanson v. Marcus (8 id. 318), There was no design on the part of this court by those decisions to change the rule, which had, for so long a time and by so many decisions in this department, become well settled. Those cases were decided upon their own peculiar facts, and are entirely in harmony with the rule theretofore existing. The Ladenbwrg case" Was brought upon bills of exchange made by the defendant in Hewfoundland, and subsequently purchased by • the plaintiff, and protested in London for non-acceptance while the plaintiff who made the affidavit for the attachment was in Hew York city. It was claimed that it appeared from the facts stated that the deponent could not have had personal knowledge of the making and protest of the bills, to which he testified unqualifiedly. It was held by the court that considering the date of the protest, December 10, 1894, and the time when the affidavit was made, May 20, 1895, there was ho reason why the affiant might not, at the timé lie made the affidavit, have had in his possession the .bills of exchange, and the notarial certificate of protest, and the court would so assume,. and that if he had them he might properly depose upon knowledge.

In the opinion of Mr. Justice Bakrett the rule laid down by Mr. Justice Van Brunt in Crowns v. Vail (supra) was quoted, that “ statements in affidavits will he presumed to have heen made on personal knowledge, unless * * * it appears affirmatively, or by fair inference, that they could not have been, and were not on such knowledge.” The rule was thus stated in different language from that found in any of the other cases, and seemed to imply that the presumption was in favor of the existence of personal knowledge, unless the contrary was shown; but that there was no intention to change the rule in that case is obvious from the language used by Mr. Justice Yah Bruht, immediately following the statement of the rule, viz.: “ It seems to- us that where an affidavit in respect to a transaction of his client is made by one who is simply an attorney of record in an action and who, as far as the record shows, is only his attorney for this action, the plain inference is that such attorney has not personal knowledge of the facts as to which he affirms. It is not even asserted in the affidavit that the affiant is the attorney in fact of the plaintiff, or that he had been the attorney of record of the plaintiff in any previous action, and all that can be inferred from the affidavit is that the retainer to bring this action was the first relation that had ever existed between the plaintiff and the affiant. Such an affidavit seems to be entirely insufficient, as the allegations must be presumed not to be within the knowledge of the attorney.”

Whatever the language used by the learned justice in formulating .the rule may have seemed to imply, therefore, the rule actually applied in the case was in accord with all the former decisions, tha't, in the absence of evidence from which the inference could be drawn that personal knowledge existed, the presumption must be indulged that the affiant had no such knowledge, or, in the language of the latter part of the rule as stated, the fair inference is that there could not have been; and was not, such personal knowledge. Clearly the same rule was believed to exist and was applied in that case which was laid down in all the other cases.

In the Ladenburg case this same rule was recognized. In disposing of the facts in- that case, Mr. Justice Barrett said: “ But the defendant is in error in its belief that the affiant was shown not to have in fact, sufficient knowledge. Knowledge such as the law requires in affidavits of the present description is not necessarily personal observation of the affiant, plaintiff. . That the bills of exchange: were drawn; in Newfoundland and protested .in London while the affiant was in Yew Y órk—this-is the sum and substance, of the defendant’s attack upon the affiant’s statements. The affidavit was made May 20, 1895, and the last of the bills was protested December 10, 1894. It was, therefore, quite possible that the bills, with the.documentary evidence of protest, were in the possession of the affiant plaintiff when he made his affidavit, and in view of' his assertion of knowledge, we must assume such to be the case, in the absence of evidence to the contrary. If he had these bills and notarial certifl-. cates of protest in his possession, his assertion of knowledge was not unfounded. ¡ There was knowledge within the sense of the statute.”

It thus appears that the theory upon which this decision was made was that, from the facts stated in the affidavits, the court would assume and the natural inference was that the affiant had this documentary evidence. This inference was not to be drawn merely from the,averment of a personal knowledge of affiant, but from, that. together with other circumstances appearing in the. affidavit. That case we repeat was decided upon its own peculiar facts. The rule should not be extended.

In Hanson y., Marcus (supra) the Ladenburg case was cited and relied upon.. But there, again, the decision rested upon facts which brought it within the rule established by all the cases to which we, have referred. The affidavit showed that the affiant was the duly authorized agent, manager and attorney in fact of . the plaintiff, and- that all the business transacted between the plaintiff and_ the defendants, about which the affiant testified, was had with an agent, though it. did not state that the affiant was such agent. These statements were such, as to fairly warrant.an inference that the affiant had general knowledge of the facts which he averred of his own knowledge. There was, in these cases, no design to change the rule theretofore established in this department. The well-settled fule should not 'be changed. To hold the affidavit-sufficient in this case would be going far beyond the Laderiburgand ’ Hanson cases, and would be a dangerous precedent for the future. We think the .better and safer rule is the one heretofore uniformly adhered to in this department, viz., that the mere averment of facts as upon personal knowledge,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.

Our conclusion, therefore, is that the order appealed from should be affirmed, with costs.

Yak Brunt, P. J., Barrett and Patterson, JJ., concurred; Rumsey, J., dissented.

Barrett, J. (concurring):

The requirements of section 636 of the Code of Civil Procedure are neither technical nor formal. The right to attach on mesne process is an extraordinary power given by statute against common right, and no title can be acquired by its exercise except upon strict compliance- with the terms of the statute. (Ency. of Pl. & Pr. Vol. 3, p. 3, and numerous cases there-cited.) By strict compliance is undoubtedly meant substantial compliance. But mere formal compliance will not answer. One of these substantial requirements is that the plaintiff must show by affidavit, to the satisfaction of the judge granting the warrant, the existence of a cause of action against the defendant. He must show this by affidavit, that is, by something in the nature of proof — not by mere averment. It is true that, in some cases, a verified allegation of the cause of action may of itself furnish proof, sufficient at least to confer jurisdiction. The allegation must then, however, be verified by the plaintiff, or his agent or attorney. It cannot be verified by a total stranger to the transac-tion, or by a person who is in a legal sense a stranger to the plaintiff. Even where the .complaint which contains the allegation is verified by the plaintiff’s agent or attorney, the latter must speak of his own knowledge, or set forth “ in the affidavit the grounds of his belief as to all matters not stated upon his knowledge, and the reason why it is not made by the party.” (Code Civ. Proc. § 526.)

How, what have we here % Averment, and averment alone, without proof or statement tending to constitute proof. The plaintiff shows nothing whatever by affidavit. He simply deposes to his naked assertion of the existence of certain facts. True, he is the plaintiff. But, so far as the attempt to show a cause of action by affidavit is concerned, he is a total stranger to the transaction between his assignor and the defendant. His affidavit is quite sufficient as to the assignment to himself. In all 'other respects it is the mere sworn .assertion of a stranger, unsupported by a particle of proof. When this distinction between averment and proof is kept in mind, the Ladenburg Case (5 App. Div. 219) and the case of Hanson v. Marcus (8 id. 318) will be found to be entirely in harmony with the conclusions here arrived at. The affidavit in the Ladenburg case was made by a member of the plaintiff’s firm about a matter of firm business and was, therefore, presumptively made upon knowledge. His verified averment of the cause of action there sufficed. That was sufficient proof by affidavit of the existence of the cause of action, to confer jurisdiction. Why ? . Because the man was speaking about his own business, that is, about matters which ordinarily import knowledge. So in Hanson v. Marcus the affiant “was the duly authorized agent, manager and attorney in fact of the plaintiff.” There, too, the agent’s verified averment of the cause of action imported knowledge. The decision rested upon the presumption that a person who was the plaintiff’s agent, manager and attorney in fact was “ the person who Ttnew as to the condition of her affairs with the defendant.” This rule applies not only to an individual plaintiff and his general agent or attorney in fact, but to the officers or other agents of a corporation; indeed, to any person who is shown by the affidavit to have been connected with the transaction which constitutes the cause of action on the plaintiff’s, behalf. ' .

Where, however, the affiant is neither- the plaintiff nor his agent, manager or attorney in fact—where he is not apparently connected with the plaintiff or the transaction in any way — his affidavit as to such transaction amounts to nothing more than a verified assertion; that is, an assertion which, for some, undisclosed reason, or upon some undisclosed information, he believes to be true. The fair inference from the bald statement of- A., standing alone and without any direct affirmation of personal knowledge, that B. has loaned money to 0. is, that A. speaks only from information which he credits. The courts have invariably held that such bald statements, although in form made positively, amounted to mere expressions of belief or opinion. Thus, in Tim v. Smith (93 N. Y. 87). the moving creditor presented affidavits of certain attorneys stating unreservedly that,.by virtue of a particular attachment, the sheriff attached property of the defendant. This was held- to furnish no evidence of the fact. “ Such an affiant,” said Chief Judge Ruger, “ does not necessarily have knowledge of, and cannot be presumed to know, the several facts attempted to be established by his affidavit, in this case.” So in Thomas v. Dickinson (33 N. Y. St. Repr. 786) the affiant stated that, shortly after the sale of certain barrels of whiskey by the plaintiffs to the defendants, they were pledged with a warehouse keeper and an advance obtained thereon. The court held that, as the statements related to transactions between other persons, at which the affiamt could not be presumed to have been present, they furnished no reliable reason for bdlieving that they had been correctly stated. Mr. Justice Daniels in that case said that the fact that a witness states transactions positively as being within his knowledge, when it can be seen that he does not possess that knowledge, constitutes a circumstance which requires the statements to be rejected. In Murphy v. Jack (142 N. Y. 215) the question of knowledge was an underlying one. The affiant attempted to comply with the rule and to give his information, he not claiming to have knowledge of the main facts. In doing so, however, he stated positively that he had received this information from the plaintiff through the telephone. It was held that this unqualified statement was insufficient to confer jurisdiction, and that the affiant was bound to show how he knew what he thus asserted as upon knowledge.

The true test of the sufficiency of an affidavit is the possibility of assigning perjury upon it if false. (The People ex rel. Cook v. Becker, 20 N. Y. 354.) This test is essentially applicable to affidavits used to secure attachments. It was well said by Lyon, J., in Miller v. Munson (17 Am. Rep. 461), that “ the proceeding by attachment is very summary and violent. The purpose of the law which requires that a certain affidavit be made before the writ can issue is to protect the alleged debtor from so severe a process, unless the creditor or some person in his behalf, under the responsibilities of an oath, shall assert the existence of certain" facts which the law adjudges good grounds for issuing the writ. This requirement of the law would afford the debtor no protection whatever unless the affiant is .liable to be punished criminally if he willfully swears falsely in such affidavit. Hence, although the affidavit be in the very words of the statute, it is not sufficient unless perjury can be assigned upon it.”

How, it may be asked, could perjury be successfully assigned upon the affidavit in question ? Suppose the plaintiff’s assignor had not sold- the goods to the defendant, but this affiant had relied, in making his- sworn assertion upon what he reasonably deemed to be credible information, Could he be justly charged with having made an unqualified statement importing knowledge of that which he did not know to be true ? Clearly not. Even if the fact were true as alleged, it would be perjury to make an unqualified statement of such fact which the affiant did not know to be true. The conunon-law rule upon the latter head which is now embodied in the Penal Code (§101) is (juaintly put by Sir William Bussell, in his work, on Crime (Vol. .1 [6th ed.], p. 294), as follows: .“With respect to the. falsity of the oath it should be observed that it. has been considered not to be material whether the fact which is sworn he in itself true .or false; for, howsoever the thing sworn may happen to. prove agreeable to the truth, yet, if it were not known to be so by him who swears to it, his offense is altogether as great as if it had been false, inasmuch as he willfully, swears that he knows a thing to be true which at the same time he knows nothing of, and impm dently endeavors to. induce those before; whom he-swears to proceed upon, the creckit of a deposition which any strcmger might make