The warrant of attachment was issued upon the ground that the defendant has departed from the State with, intent to defraud his creditors, or to avoid, the service of a summons; or that he has removed or is about to remove property from the State, with the intent to defraud his creditors; or has assigned, disposed of or. secreted, or is about to assign, dispose of or secrete the property with like intent. It is contended on the part of the appellant that the affidavits are not sufficient to authorize the issuing of the attachment; that the facts relied upon are stated upon information and belief, and not from positive knowledge, etc.
The rule, as we understand it, is that the affidavits upon which an attachment is granted should be explicit arid in clear, concise terms state a cause of action, and such facts as will satisfy the court or officer to whom the application is made of the intent and' attempt of the defendant to cheat and defraud his creditors. In general, these facts should be stated upon positive knowledge; buf where, from the circumstances of the cáse, they cannot be so stated, they may be stated upon information and belief, giving the names of the persons and the sources from which the information is derived, and the reasons why the affidavits of those having positive knowledge cannot be procured ; we do not understand this rule to be in conflict with that stated in the case of Yates v. North (reported in 44 N. Y., 274); and followed in the case of the Steuben County Bank v. Alberger (reported in 78 N. Y., 252). In that case the court says: “Neither a general statement of fraud nor a statement on information and belief, without showing that the person from whom the information was obtained is absent, or that his deposition cannot be procured, is sufficient to authorize the granting of an attachment.” From this the appellant argues that if the person having positive knowledge is not absent from the
In this case Smith was the clerk, and kept the books of the defendant. He had positive knowledge of many facts and circumstances tending to show an intent to cheat and defraud the creditors. Smith had brought an action to recover and secure his own claim. Upon his own affidavit he had procured an attachment. He was requested by the attorney for the plaintiff to make an affidavit stating the facts as stated in his own affidavit in the case, but he refused. He was seeking to secure his own claim, and did not care to have it embarrassed by others. Under these circumstances we think the plaintiff should be excused from procuring an affidavit from Smith. The affidavit already made by him is on file in the office of the clerk of the county, and the person making the affidavit upon which the attachment was issued, refers to such affidavit, quotes it in this affidavit and states that to be the source of his information, and that he verily believes it to be true. We think this to be a compliance with the rule. The facts stated in
Order affirmed, with ten dollars costs and disbursements.
This result makes it unnecessary to further consider the motion to dismiss the appeal. That motionis denied without costs to either party.
So ordered.