« AnteriorContinuar »
from Boston, for the reason that it is possible, as deponent is informed and believes, to attach property to-day in New York city, belonging to the defendants, but that it would be likely to be removed and lost if a day's delay were required.” The complaint and affidavit were verified August 2, 1893, and a sufficient undertaking was given, and an attachment was granted ou the same day by a judge of this court, which was vacated, on the papers on which it was granted, by a special term, held by another judge of this court.
Argued before VAN BRUNT, P. J., and O'BRIEN and FOLLETT, JJ.
Sullivan & Cromwell, for appellant.
FOLLETT, J. The right to attach property to secure the pay. ment of a debt before recovering a judgment against the alleged debtor is not a common-law right, but in this, as in most of the states, it exists by virtue of statutes, the requirements of which, and the procedure prescribed by them, must be substantially complied with by the attaching creditors, in order to acquire a valid sien on the debtor's property. Our Code requires the plaintiff “to show by affidavit, to the satisfaction of the judge granting the same, [attachment,)” the necessary facts. The Code does not require that the affidavit shall be made by the plaintiff, nor by any one having personal knowledge of the existence of the facts stated in the affidavit; but an affidavit made by the agent or by the attorney of the attaching creditor, averring that the facts required to be shown by section 636 of the Code exist, as the affiant is informed and believes, stating the source of his information and the grounds of his belief, is sufficient to confer jurisdiction on a judge to grant an attachment. Buell v. Van Camp, 119 N. Y. 160, 23 N. E. 538; Bennett v. Edwards, 27 Hun, 352; Crowns v. Vail, 51 Hun, 204, 4 N. Y. Supp. 324; Strawboard Co. v. Inman, 53 Hun, 39, 5 N. Y. Supp. 888; Yarn Mills v. Bilbrough, 2 Misc. Rep. 100, 21 N. Y. Supp. 2;. Reichenbach v. Spethmann, 5 N. Y. Law B. 42.
In the case at bar, the existence of the facts necessary to confer jurisdiction on the judge having been shown by affidavit, the question is, ought the judge to have been satisfied by the evidence presented? When courts and judicial officers are asked to act upon affidavits made on information and belief, they require, as a matter of safety, that the source of the information, and the means by which it was communicated, be disclosed. If the source of information be a person, it must be one who the court can see probably had personal knowledge of the facts communicated, and the means by which the communication is made must be one which experience has shown to be usually reliable, and one which a prudent man would employ in a matter of importance to himself. The source of information in this case was the plaintiff, the person, of all others, most likely to have personal knowledge of the existence of the debt, its amount, and the residence of the debtors.
The source of the affiant's information is the best, and, indeed, it was not questioned by the learned judge at special term, nor is it by the learned counsel for the respondents, except it is
suggested that some of the information was communicated by the plaintiff's attorney in Boston; but it is specifically stated in the affidavit that all of the jurisdictional facts were communicated by the plaintiff. But it is said that the means by which the affiant acquired his information is not sufficiently reliable to authorize or support judicial action. The means through which the plaintiff derived his information was a conversation by a long-distance tele. phone, the plaintiff being in Boston, and the affiant in New York. It has been held that an attachment may be based upon facts reported to the affiant by means of a cablegram. Reichenbach v. Spethmann, supra. In the case last cited, an attachment was granted and sustained on information cabled from Europe to the afiant in New York. Certainly, the means would not have been less reliable had the sender and receiver of the cablegram been able personally to have communicated with each other by telegraph, and had done so. There was certainly no greater chance for error in communicating the information received by the affiant, in the case at bar, in the manner in which it was communicated, between persons interested in arriving at the exact facts, than there would have been in a communication transmitted either by telegraph or telephone, and written out and delivered in the ordinary way. We do not think that it will do to hold that judi. cial action cannot be based on information transmitted by tele. phone, unless, as it is suggested, the affiant swears that he knew and recognized the voice of the person with whom he communicated. Such identification is impossible in telegraphic communication, and the precaution of repeating dispatches would afford no greater security against deception than the opportunity of personal inquiry and cross-examination orer the telephone. There can be no absolute rule by which the sufficiency of evidence to sustain attachments can be determined, and every case must depend largely upon its own facts, and somewhat upon the nature of the action, and also between whom the question arises. In the case at bar the cause of action is a liquidated demand, arising on the sale of goods; the ground for the attachment is that defendants are nonresidents of the state,-two simple facts, which, as between the creditor and debtor, we think were established prima facie by the complaint and affidavit used on granting the writ, and that the burden was cast on the defendants, if they desired relief from the attachment, to rebut the presumption arising from these affidavits, and show affirmatively either that they were not indebted, or that they were not nonresidents of the state. Had the question arisen between subsequent lienors, a stricter rule might be enforced, but, as between these parties, it seems to us that the plaintiff should not be deprived of his lien, unless the de fendants overthrow the prima facie case of the plaintiff. The fact that the plaintiff was without the state, and that the affiant be. lieved that the defendants' attachable property would be removed from this state before an affidavit could be obtained from the plaintiff, was a sufficient excuse for presenting the affidavit of the attorney, instead of that of the party. The order should be re
versed, with $10 costs and printing disbursements, and the motion denied, with $10 costs, but with leave to the defendants to make a new motion upon affidavits for an order vacating the writ.
O'BRIEN, J., concurs.
VAN BRUNT, P. J., (dissenting.) I cannot concur in the conclusion of the within opinion. It proceeds upon the ašsumption that the attorney communicated with the plaintiff by telephone, and received from him the facts necessary to be presented to the court, upon the application for attachment. The attorney did not see the plaintiff, nor did he recognize his voice. Where, then, is there any proof that the plaintiff communicated anything? In the case of a telegram, a record is made. The original dispatch is preserved and accessible. But, in the case of communication by telephone, nothing is left to which any test can be applied by which the accuracy or authenticity of the alleged communication can be determined.
PARKER et al. v. BUTLER et al. (Supreme Court, General Term, First Department. February 16, 1894.) 1. WILS-CONSTRUCTION-INDEMNITY TO GENERAL ESTATE.
Testator, who was jointly interested with his brother in certain lands and land contracts in West Virginia, agreed, on his brother's death, to buy his interest from his heir for $18,000, to be paid for out of the proceeds of the lands, or in full at any time, without waiting for a sale. Afterwards, testator paid the price in full, but only a small part was from sales of the lands. After the agreement with his brother's heir, but before the payment, testator made his will, devising all his lands and land contracts and equitable interests in lands in West Virginia in trust for certain purposes, and directed the trustee to pay, out of the proceeds of the lands, the $18,000 for the brother's interest, or so much "as shall then remain unpaid." The will further recited that testator had "also" expended $30,000 on the lands, by which amount his general estate was diminished, and directed the trustee, after paying the $18,000, to refund to the executors said sum of $30,000. Held, that testator intended the trustee to pay the price of the brother's interest in the lands only to the vendor thereof, and he did not intend, in case he (testator) should pay it, or any part of it, out of his general estate, that the trustee should re
fund that amount, also, to the executors. 25 N. Y. Supp. 1100, affirmed. 2. SAME-CHANGE IN OWNERSHIP OF TESTATOR.
After making the will, testator and others conveyed the G. tract of land in West Virginia, owned jointly by them, to third persons, who at the same time executed a declaration reciting that they held the land in trust for the grantors, their heirs and assigns, forever, according to their respective rights and interests, but that any deed made by them (the trustees) should convey a good title. This was the only reference to sale by the trustees made in the declaration of trust. Held,' that the devise of the West Virginia lands in trust included testator's interest in the G. tract. 25 N. Y. Supp. 1100, affirmed. Appeal from special term, New York county.
Action by Willard Parker and another, as executors, against Benjamin F. Butler, as trustee, and others, for the construction of the will and codicil of Dr. Willard Parker, deceased. From a judgment in favor of defendants, (25 N. Y. Supp. 1100,) plaintiff's appeal. Affirmed.
Argued before VAN BRUNT, P. J., and O'BRIEN and PAR KER, JJ.
Earl L. Stimson, for appellants.
Butler, Stillman & Hubbard, (Adrian H. Joline, of counsel,) for respondent Butler.
Cary & Whitridge, (Willard Parker Butler, of counsel,) for other respondents.
Wallace MacFarlane, for Edward B. Whitney, guardian, etc., respondent.
VAN BRUNT, P. J. This action was brought to procure a construction of the will and codicil of Dr. Willard Parker, who died in New York city on the 25th of April, 1884, which will and codicil were admitted to probate on the 31st of May, 1884. The will and codicil in question were executed by the testator, respectively, on the 5th of January, 1883, and the 11th of January, 1883. Some time prior to the execution of the will and codicil in question, the testator and his brother, Grenville Parker, were jointly interested in a large amount of West Virginia land. The said Grenville Parker died intestate on the 10th of May, 1881, leaving, him surviving, his widow, Eliza A. Parker, and his daughter, Emily T. Parker, his only child and heir at law. In July, 1881, the said Eliza A. Parker was duly appointed sole administratrix of the estate of said Grenville Parker by the courts of West Virginia, he being at his decease a resident of said state. On the 14th of February, 1882, an agreement was entered into between said Eliza A. Parker and Emily T. Parker, and Eliza A. Parker, as administrator, etc., and the testator, for the sale to said testator of all the right, title, interest, and estate which said Grenville Parker had owned or possessed in and to said lands for the sum of $18,000, which was to be paid out of the first moneys received by him from the sale and disposal of the lands, properties, and interests described in said contract. The contract also contained a clause giving said testator the right to make payment of the consideration money without waiting for a sale of the lands, as provided in said contract. The testator had also other properties at West Virginia, and a considerable estate in New York, Massachusetts, and elsewhere. By the general scheme of the will the testator divided all his property into two general classes, each distinct from the other,-his West Virginia property, of every sort whatsoever, treated in the sixth clause, and his general estate considered in the other portions of the will. The said sixth clause, so far as it is necessary to recite the same for the purposes of this opinion, is as follows:
"Sixth. As I am now owner of various lands, and contracts for the pur chase or sale of lands, leases, mortgages, and equitable interests and rights in and to lands, situated at West Virginia, and as I may hereafter acquire other such lands in said state before my death, and as I wish to make a spe. cial disposition of the same, different from that which I hereafter make of my other estate, now, therefore, I hereby give, devise, and bequeath all the property and estate, real and personal, above described, which I shall own or be entitled to dispose of at my death, unto my son-in-law, Benjamin F. Butler, of Scarsdale, Westchester county, and state of New York, as trustee in and upon the following trusts and conditions, that is to say."
Then follows a power to sell, to lease, to collect rents and issues, to discharge taxes and assessments, to pay for insurance, to erect and repair buildings, to sink mines and construct roads, bridges, railroads, canals, etc., to purchase adverse rights or claims, and to purchase adjoining lands. Power is also given, for the purpose of raising money for any of the above objects, to mortgage said lands, or any part of them, from time to time; and the trustee is authorized, if there be any surplus, whether of income or of proceeds of sale or of insurance, after satisfying the purposes mentioned in said clause, to distribute the same in certain proportions. By his codicil to said will the testator provided as follows:
"First. Inasmuch as the property disposed of in the sixth clause of said will is intended to include, among other things, all rights which I may have in, or in relation to, certain lands and premises situated in the state of West Virginia which were formerly owned by me in common with my deceased brother, Grenville Parker, his interest in which said lands his widow (both in her individual right and as his administratrix) and his only surviving daughter have, by an instrument duly executed between us, and bearing date the fourteenth day of February, eighteen hundred and eighty-two, agreed to sell and convey to me (with other property) for the agreed price of $18,000, now, therefore, to prevent any misunderstanding in relation thereto, I hereby direct that the trustee named in the said sixth clause of my said will, after paying, out of the proceeds of the sales of the trust property in said clause devised to him, such taxes, assessments, or other charges or incumbrances as he may think proper to be first paid thereout, shall use and apply the next moneys received by him from the said trust property (whether from rents, proceeds of sales, or otherwise) in and towards the payment and satisfaction of the said sum of eighteen thousand dollars, or so much thereof as shall then remain unpaid, according to the provisions of the above-mentioned agreement; and I hereby direct that, if my said brother's interest in so much of said, lands as are in West Virginia shall not have been already conveyed to me prior to my death, such conveyance shall be made to the trustee named in said sixth clause, or to his successors in the trust, he and they being hereby designated as the persons entitled to demand such conveyance under said agreement.
"Second. And inasmuch as I have also, within a few years last past, expended sundry sums, amounting in the aggregate to $30,000 or more, in and about the management and preservatior of my said properties in West Virginia, by reason whereof my general estate has been diminished by that amount, now, therefore, I do hereby further direct that the said trustee named in the said sixth clause of my said will, after he shall have paid in full the $18,000 mentioned in the next preceding clause of this codicil, (or so much thereof as shall remain unpaid at my death,) shall use and apply the next moneys received by him from the said trust property (whether from rents, proceeds of sales, or otherwise) in and towards refunding to my executors the sum of thirty thousand dollars aforesaid, which shall thereupon be and become part of my personal estate; and, if the said trustee shall not so refund that sum on or before the expiration of two years after my death, then he shall also pay interest on the same, or on so much thereof as shall then remain unpaid, from that date until paid, at the rate of five per cent. per annum; but if, before my death, I shall receive from my said property in West Virginia any sum or sums (over and above the current expenses of preserving and maintaining the same) more than sufficient to satisfy my obligations under the above-mentioned agreement relating to the interest of my deceased brother, Grenville Parker, then the excess over that amount so received by me shall go to diminish the sum of $30,000 which the said trustee is to refund to my executor, as in this clause is provided.
“Third. I direct that no distribution of the proceeds of the property devised or bequeathed in the said sixth clause of my said will shall be made to any of my descendants, as in said sixth clause provided, until the two sums mentioned in the first and second clauses of this codicil are first paid; but nothing herein contained shall interfere with the discretion given to the said