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Wokal v. Wincy Belsky.
the prayer of the complaint being for a final determination of the question as to whom among the adverse claimauts the fund is payable. Regarded, however, as an action at law, the further contention is unsound, because section 447 of the Code has never been confined exclusively to equity actions.
In Derham v. Lee (87 N. Y., 599), an action brought to recover for services rendered, this question was thus ably discussed and settled: "It was in equity a general rule that all persons interested in the subject of the suit should be made parties either as plaintiffs or defendants. in order to prevent a multiplicity of suits and secure a final determination of their rights (Story Eq. Plead., sec. 72). The provisions of our Code are not in derogation of this principle, but apply it to all actions where the controversy can be ended by one hearing and adjudication (secs. 446, 447, 452). The first section permits all persons having an interest in the subject of the action, and in obtaining the judgment demanded, to be joined as plaintiffs, except in certain prescribed cases; the next allows any person to be made a defendant who has, or claims, an interest in the controversy, adverse to the plaintiff or whose presence is necessary for a complete determination of a question involved therein, while the last requires the court to direct such other parties to be brought in. The case is within the spirit and meaning of these provisions."
And in Rank v. Levinus (5 Civ. Pro., 368), an action in ejectment where an appeal was taken from an interlocutory judgment overruling demurrer to complaint, it is said in the opinion on appeal affirming the judgment: "The complaint in substance avers that the other defendants are in occupation of the whole and the defendant is in possession with them of a part. If the appellant's position is correct, the plaintiff would be driven to an action against the appellant alone and then another action against the other defendants. She ought to have an action against
Anthony & Co. v. Fox.
In my opinion section 447 applies to the case of the appellant as a party who claims an interest in the controversy adverse to the plaintiff."
Our conclusion is that there was a good cause of action stated as against the principal defendant, and that the bringing in of the defendant Belsky did not as to her make the complaint demurrable. The order sustaining the demurrer was, therefore, erroneous, and the interlocutory judgment entered thereon should be reversed, with costs of appeal and costs of demurrer in the court below to the appellant, but with leave to the defendant to withdraw demurrer and answer within twenty days from entry of judg ment upon payment of said costs.
E. & H. T. ANTHONY & CO., APPELLANT, v. IVAN FOX, RESPONDENT.
SUPREME COURT APPELLATE DIVISION-FIRST DEPARTMENT, JULY TERM, 1900.
Attachment upheld-Existence of cause of action sufficiently shown by moving papers.
To obtain a valid warrant of attachment, whereby a defendant's property is forcibly taken from him without an opportunity of being heard, there must be presented to the justice granting the attachment competent common-law evidence of the facts upon which the right to the attachment is based. The question is always whether the documentary evidence presented to the justice on application for an attachment would, if introduced upon the trial, justify a verdict for the plaintiff.
An attachment upheld in a suit by a domestic corporation against a non-resident, where an affidavit was included among the moving
Anthony & Co. v. Fox.
papers made by an officer of the plaintiff, who swore that he had personal knowledge of the transaction in question, and that the plaintiff sold and delivered to the defendant goods, wares and merchandise for which a recovery is sought, although it was not expressly stated that such deponent was an officer of plaintiff at the time the goods were sold. Such affidavit Held sufficient to make out a presumptive case that a cause of action existed in favor of the plaintiff against the defendant. (Decided, July, 1900.)
Appeal from order vacating warrant of attachment.
Henry B. Ketcham, for appellant.
Wilson Lee Cannon, Jr., for respondent.
INGRAHAM, J.-The complaint alleges that the plaintiff, a domestic corporation, between on or about the 14th of August, 1899, and the 4th of October, 1899, both dates inclusive, at the special instance and request of the defendant, sold and delivered to the defendant certain goods, wares, and merchandise of the reasonable value and fairly worth, and for which the defendant promised to pay, the sum of $424.63, for which sum the complaint demanded judgment. Upon this complaint and affidavits of Frederick A. Anthony and others, the plaintiff procured a warrant of attachment, the defendant being a non-resident. The defendant moved to vacate this attachment upon the papers upon which it was granted, the ground being that the papers are insufficient and fatally defective, as they contain no competent or legal evidence that the defendant is a non-resident of this State, and in that they do not show that a cause of action exists in favor of the plaintiff against the defendant. The court below vacated the attachment upon the ground that there was no proof whatever that, at the time the transaction between the plaintiff and the defendant took place, Frederick A. Anthony, whose affidavit was depended upon to prove that the
Anthony & Co. v. Fox.
plaintiff had a cause of action, had any connection whatsoever with the company; nor did it seem possible to infer the existence of any such relation at any prior time from the mere averment that at the time the affidavit was madę such a relation did exist. The affidavit upon which the motion was granted alleges that the affiant is the secretary and treasurer of the plaintiff; on information and belief that the defendant Fox is a non-resident; that on or about the 14th day of August, 1899, both dates inclusive, the plaintiff, at the instance and request of the defendant, sold and delivered to the defendant the goods, wares and merchandise of the reasonable value and fairly worth, and for which the defendant promised to pay, the sum of $424.63; and annexed to the complaint, and marked Exhibit A, is an itemized statement of said sales and deliver ies; and that the plaintiff is entitled to recover from the defendant the said sum of $124.63, with interest as aforesaid, over and above all counterclaims known to the plaintiff or deponent. There were other affidavits as to the nonresidence of the defendant, and the complaint in the action was submitted to the justice granting the attachment. This complaint was verified by Frederick A. Anthony, who swore that he was secretary and treasurer of the plaintiff; that he had read the complaint and knew the contents thereof, and that the same was in all respects true of his own knowledge, except as to those matters therein stated to be alleged upon information and belief, and as to those matters he believed it to be true; that the reason why the verification was made by deponent and not by the plaintiff was that the plaintiff was a domestic corporation, and that the deponent was an officer therof, to wit, its secretary and treasurer; "and that all the material allegations of said complaint are true of deponent's personal knowledge."
As to the non-residence of the defendant, we think the affidavits contain a sufficient statement of facts to the
Anthony & Co. v. Fox.
knowledge of the persons making them to justify a finding that the defendant was a non-resident; and that statements made by his employees in answer to enquiries at his place of business, evidence of the city directories of New York, at Philadelphia, and the other facts sworn to are sufficient to justify a finding that the defendant is a resi dent of the State of Pennsylvania.
The ground upon which the justice vacated the attachment is, as stated in the notice of motion, that the affidavits are insufficient and fatally defective, in that they do not show at the time that a cause of action existed in favor of the plaintiff against the defendant. The learned judge with reluctance came to the conclusion that, under certain decisions of this court and of the late General Term, he was compelled to hold that, as the affiant upon whose affidavit this attachment was granted did not in terms state that he was an officer of this corporation at the time the goods were sold, his testimony as to the sale and delivery of the goods could not be accepted as proof of the fact of such sale and delivery, notwithstanding the affiant swore positively to the facts, and further swore that all of the material allegations of the complaint were true of deponent's personal knowledge. We have held (and we do not intend to question the propriety of these decisions) that, where an assignee of a claim makes an affidavit that his assignor had a valid claim against the defendant, and nothing appears from the papers to indicate that the assignee had any relation to the transaction, or had any personal knowledge of the facts upon which the cause of action is based, such an affidavit fails to furnish evidence from which the court is justified in finding that a cause of action exists in favor of the plaintiff against the defendant: and the principle of these cases has been extended to an affidavit made by an officer of a corporation where nothing appears in the affidavit to show that he was an officer at the time of the transaction, or that he had personal knowledge of the facts.