The warrant of attachment in this case was granted upon the affidavit of the plaintiff, and the motion to vacate the attachment is made by a junior creditor, without any papers except a stipulation that he has a lien by attachment upon the same property as that upon which the attachment is granted in this action. The sole ground upon which the warrant was vacated was that the affidavit upon which it was granted was not sufficient. In form, the affidavit is all that could be desired. It states the facts which are required by the statute to entitle the plaintiff to the relief which he asks. It says that the defendant is a foreign corporation, having its office and principal place of business in Chicago, in the state of Illinois; that before the 14th of May, 1896, at Chicago, the New York Standard Watch Company, through its agent, sold to the defendant certain goods, which were, on the 14th day of May, 1896, delivered at Jersey City to the defendant; that the goods were sold at the agreed and reasonable price of $214, which the defendant promised to pay; and that no part thereof has been paid, although demanded. The affidavit further states that the cause of action was assigned to the plaintiff. The criticism upon this affidavit, and the ground upon which it ,has been held to be defective, is that, although the facts contained in it are stated positively by the plaintiff, yet his grounds of knowledge are not stated, and it does not appear from what he says that he did have personal knowledge of the facts out of which grew the cause of action which lies at the foundation of his right to an attachment. It is to be noticed that there is nothing to contradict or disprove the allegations contained in the affidavit; and the question raised, therefore, is simply a technical one,—whether-it will be assumed, where a fact is stated as of the personal knowledge of the affiant, that such fact does not exist, because the affiant has not, in addition to stating the fact, stated other facts from which it could be made to appear that he must have known that whereof he spoke. The rule of law has always been with regard to the testimony of witnesses that, when one stated a fact as of his personal knowledge, it would be presumed that he had such knowledge, unless it appeared presumptively or by fair inference that he could not have had it, and that the allegations were not made upon it. Such was the rule laid down in Crowns v. Vail,. 51 Hun, 204, 4 N. Y. Supp. 324, in the case of an attachment. That has always been the rule applied in the interpretation of testimony. It has been applied in this court in the case of Ladenburg v. Bank, 5 App. Div. 219, 39 N. Y. Supp. 119, and still more recently in Hanson v. Marcus, 8 App. Div. 318, 40 N. Y. Supp. 951.
*718The case of Ladenburg v. Bank, supra, is precisely in point on this question. The action was brought upon certain drafts which had been made by the defendant, a foreign corporation, payable in London, and which had been presented at the bank in London, where they were payable for acceptance, had not been accepted, and were protested for nonacceptance. It was necessary in that case for the plaintiff to show, as a part of his cause of action, that the drafts had been presented for acceptance, that acceptance had been refused, and that they had thereupon been protested. It was conceded that those things, if they occurred, must have occurred in the city of London; and it also was conceded that the plaintiff, upon whose affidavit alone the attachment was granted, had not been in the city of London, and therefore could not have been present when the facts which he testified to occurred. Upon that state of facts, the court below refused to vacate the attachment. Upon an appeal taken to this court, it was strenuously insisted that the plaintiff could not have had knowledge of the facts which were stated in his affidavit, and that, therefore, it was error to have permitted the attachment to stand. The court say:
_ “Knowledge such as the law requires in affidavits of the present description is not necessarily personal observation of the affiant plaintiff. That the bills of exchange were drawn in Newfoundland, and protested in London, while the affiant was in New York, this is the sum and substance of the defendant’s attack upon the affiant’s statements. The affidavit was made May-20, 1895, and the last of the bills was protested December 10, 1894. It was therefore quite possible that the bills, with the documentary evidence of protest, were in the possession of the affiant plaintiff when he made his affidavit; and, in view of his assertion of knowledge, we must assume such to be' the case, in the absence of evidence to the contrary. If he had these bills and notarial certificates of protest in his possession, his assertion of knowledge was not unfounded. That was knowledge, within the sense of the statute.”
The necessary effect of that decision is that an affidavit made as of the personal knowledge of the affiant is sufficient, unless it appears that he could not have had knowledge of the facts whereof he speaks, and that if the affiant could have had knowledge, derived in the ordinary course of business, of the truth of the thing which he testified to, it will be sufficient to sustain the attachment. There was no proof in that case that the plaintiff had the bills, with notarial certificates of protest; nor was there anything to show that he knew anything more on the subject than that he had received telegraphic advices from London that acceptance of the bills had been refused, and that they had been protested. But yet the court, for the purpose of sustaining the attachment, the plaintiff-having testified positively to the facts, indulged in the presumption that he had the ordinary means of knowledge which would enable him to testify, not to what he saw done, but to the inferences which he might have drawn from the knowledge which he acquired, because he had in his hands evidence that the bills had been protested. That case was decided by a unanimous court, after much consideration. It is not an extreme application of the rule, which was regarded as well settled, but it is the ordinary common-sense construction to be put upon an affidavit as to business matters when the facts alleged in them are not disputed. The case was *719followed by this court in Hanson v. Marcus, 8 App. Dir. 318, 40 N. Y. Supp. 951, where the affidavit was made by one who was the duly-authorized agent of the plaintiff, and who stated as of his own knowledge the facts constituting the cause of action which appeared to have been transacted between the defendants and the agent of the plaintiff. It did not appear, however, that the affiant was the agent. But the rule laid down in the Ladenburg Case was applied,—that statements in affidavits will be presumed to have been made upon personal knowledge except when stated to have been made upon information and belief, or where it appears affirmatively or by fair inference, upon the face of the affidavit itself, that the statements could not have been made, and were not made, upon personal knowledge.
Now, what appears in this case? The testimony of the plaintiff is positive that a transaction took place in Chicago shortly before the 14th of May, 1896. He does not say whether or not he himself was in Chicago at the time. For aught that appears in this case, not only may he have been there, but he may have been the person who had the transaction which resulted in the sale of these goods to the defendant. It is not a violent presumption that men from New York go to Chicago, and do business there for corporations doing business in this state; and it is a matter of everyday knowledge that men in New York do business each day, by word of mouth, with people in Chicago, through the telephone, one man being in Chicago, and the other in New York. So that when a man living in New York states, as of his personal knowledge, that something occurred in Chicago a few months before, it may fairly be inferred that he states what he knew, and, in the absence of any testimony contradicting it, his affidavit ought to be sufficient to warrant the court in taking action upon it. This is not an extension of the rule laid down in Ladenburg v. Bank, but it is simply a fair application of the ordinary common-sense rule which is to be applied to business transactions. It is to be remembered that the necessary result of that case is that personal knowledge is not required. Indeed, the opinion says so. All that is required is that the affiant should have such information as would enable him to establish the fact when called upon to prove it; and, if he has that knowledge, he need not state in his affidavit that he has any such knowledge (he did not state it in the Ladenburg Case), but it will be presumed that he did have it, and that he will be able to produce it upon the trial. When this affidavit was presented to the court, jurisdiction to grant the warrant was obtained (Ladenburg v. Bank, supra); and it then became necessary, before the attachment could be vacated, to disprove the facts thus positively testified to. No such evidence was given, and for that reason it was error on the part of the court below to vacate the warrant. This action cannot be sustained unless we are prepared to overthrow the rule laid down in the cases of Ladenburg v. Bank and Hanson v. Marcus, supra.
The order of the special term should be reversed, with $10 costs and disbursements.