Opinion
June Term, 1900.
Richard V. Boyd, for the appellant.
J.F. Harrison, for the respondent.
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 information and belief proves nothing ( Mowry v. Sanborn, 65 N.Y. 584), and unless 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. Baring, 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., RUMSEY, PATTERSON and INGRAHAM, JJ., concurred.
Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.