The attachment was granted, as appears from the recital in the warrant, on the ground that the defendant had absconded and departed from this State to the city of Philadelphia and State oí Pennsylvania with intent to defraud his creditors and to avoid the service of a summons.
Omitting the statements in the affidavits which are expressly based upon information derived by the affiants from other persons, we have only these positive averments : (1) That the defendant is a *80Resident of this State; (2) that he cannot with due diligence be found within this State; (3) that on the 17th day of November, 1898, he was arrested upon the complaint of Kunigunde Buhn for larceny and was arraigned on the same day and gave bond for his ■appearance on the 22d day of November, 1898, and on the 18th •day of November, 1898, absconded; and (4) that on or about the 14th ánd 15tli days of November, 1898, the defendant conveyed to his wife’s sister eight parcels of land in the borough of Brooklyn.
In addition to these allegations we have the statement of the plaintiff in his affidavit that he has been informed by the defendant’s partner that the defendant has absconded, and that he was very much involved and was indebted to numerous parties in sums •■amounting in all to about $40,000. Information that the defendant had absconded was also furnished by the defendant’s partner to Mr. Theodore Kiendl, the plaintiff’s counsel, who also swears that ■defendant’s wife called upon him and informed him that her husband had absconded, and that he was indebted to a large number of parties for moneys he had received from them to invest. Mr. Kiendl further deposes that Mrs. Dreher also informed him that the defendant had left his house in Brooklyn on November 18, 1898, and did not leave any word whatever with her- or any other member of the family as to'his whereabouts or when he would return.
The attachment papers would be sufficient to uphold the warrant if they disclosed any satisfactory reasons for not presenting the affidavits of the persons from whom the various items of information were derived. But they disclose no reason at all. The averments resting on information and belief, therefore, afford no legal basis for the attachment. This is too well settled by authority to permit the courts now to change the rule. In the brief for ■ the Respondent, the reason assigned for not furnishing affidavits from the informants is that one of them was the wife of the defendant, ■and the other was his partner, who would naturally have refused to give the information,, if they knew that it was desired for the purposes of an.attachment. There are decisions distinctly to the effect, however, that affidavits for attachment are insufficient, when based •on the information derived from the defendant’s wife or a person •connected with him in, business, unless such affidavits give good reasons for not furnishing the téstimony of the informants themselves. *81(See Woodhouse v. Todd, 10 Wkly. Dig. 28; Sickles v. Sullivan, 5 Hun, 569.)
Disregarding, therefore, the statements made upon information and belief, we do not find enough in the papers to support the warrant. The assertion in the plaintiff’s affidavit that the defendant cannot with due diligence be found in this State, is merely the statement of a conclusion, without any proof that the affiant knows any facts upon which to base it. The same is true of the allegation in the affidavit of plaintiff’s counsel to the effect that the defendant has absconded. Furthermore, although this statement" is positive in form, the fact is one -of which the affiant will not be presumed to have personal knowledge merely because he is counsel for the plaintiff in the present suit. (Hoormann v. Climax Cycle Co., 9 App. Div. 579.)
If we leave out of consideration, then, the merely hearsay averments and conclusions, we have nothing left but the defendant’s-breach of his contract with the plaintiff; his prosecution for larceny at the instance of a person who does not appear to have any relation to the matters in controversy in this suit; and his transfer of eight pieces of real estate to his wife’s sister. These facts, of themselves, do not suffice to sustain the attachment.
The rules thus invoked should not be regarded as unduly strict and technical. In seizing the property of a citizen by means of a provisional remedy, before his liability has been established by any judicial adjudication, the courts should insist that the best evidence be furnished wherever reasonably practicable, and that hearsay shall be received only when the proof shows satisfactory reasons for dispensing with testimony at first hand. A careful examination of the affidavits in this proceeding shows that they contain very little to which the affiants would be competent to' testify as witnesses, if called to the stand upon a trial involving the same issues. Under such circumstances, where hearsay plays so large a part, it is not too much to require of the moving party that he shall satisfy the. court that he has made a reasonable effort to supply better evidence, or that such effort would have been unavailing.
Order affirmed, with ten dollars costs and disbursements.