Appellate Division of the Supreme Court of New York, 1900

Hunt v. Robinson

Appellate Division of the Supreme Court of New York · Decided June 15, 1900 · McLaughlin

52 A.D. 539; 65 N.Y.S. 386

Counsel

Richard V. Boyd, for the appellant., J. F. Harrison, for the respondent.

Cases that cite this one

3 later published cases cite this decision.

Sizer v. Hampton & Branchville Railroad & Lumber Co. (Appellate Division of the Supreme Court of New York 1902)
Eichner v. Metropolitan Street Railway Co. (Appellate Division of the Supreme Court of New York 1906)
Sizer v. Hampton & Branchville Railroad & Lumber Co. (Appellate Division of the Supreme Court of New York 1902)

This list shows which later cases cite this one. It does not say how they treated it, and no review of that has been done. Not a substitute for Shepard’s or KeyCite — verify before relying.

Opinion of the Court

McLaughlin, J.:

Plaintiff obtained a warrant of attachment on the ground that the defendant had assigned and disposed of his property with intent to hinder and delay his creditors (Code Civ. Proc. § 635), which the defendant moved to vacate- upon the papers upon which it was granted. The motion was denied and -he has appealed. The warrant was granted upon an affidavit of the plaintiff and his attorney, and a copy of an affidavit of the plaintiff’s assignor used in another action.

Plaintiff’s cause of action, as appears from these affidavits, is the breach of , a -contract entered into between the defendant and one Johnson, plaintiff’s assignor, by the terms' of which the defendant agreed to indemnify Johnson against a certain claim of the Hoyt & Olmstead Cigar Company. The only proof of the existence, of such cause of action is - the affidavit of the plaintiff himself, which is -made on information and belief. Neither the source of his information nor the ground of his belief is stated. The affidavit of his attorney and the copy of the affidavit of Johnson relate solely to the alleged fraudulent disposition of the defendant’s property. The assertion of a fact in an affidavit upon inforniation and belief proves nothing (Mowry v. Sanborn, 65 N. Y. 584), and *540unless the sources of the information and the grounds of the belief be stated, an affidavit- on -information and belief is insufficient to authorize the granting of a warrant of attachment. (Steuben County Bank v. Alberger, 78 N. Y. 252 ; Murphy v. Jack, 142 id. id. 215 ; Empire Warehouse Co. v. Mallett, 84 Hun, 561; First National Bank v. Wallace, 4 App. Div. 382.; Wallace v. Baringy 21 id. 477.)

The papers upon which the warrant was granted were, insufficient to' prove the existence of a cause of action, and, therefore, the’ motion to vacate should have been granted.

It follows that the order appealed from must be reversed, with ten dollars costs and disbursements, and .the motion granted, with ten dollars costs'.

Van Brunt, P. J., Ruhsey, Patterson and Ingraham, JJ., concurred.

Order reversed, with ten dollars costs and disbursements-, and motion granted, with ten dollars costs.

Case-law data current through September 30, 2026. Source: CourtListener bulk data.