Martin v. Aluminum Compound Plate Co.

Barrett, J.:

This case is directly within the rule laid down in Einstein v. Climax Cycle Company (13 App. Div. 624) and Hoormann v. Climax Cycle Company (9 id. 579). As in these cases, the plaintiff here is an •assignee of the claim sued upon. The claim is for legal services rendered to the defendant by a firm of attorneys. How this lady, Myra B. Martin, came to know anything about the performance of these services is not disclosed. The papers upon which the attachment here was granted present an extreme illustration of the justice of the rule laid down in the cases cited. In her complaint the plaintiff states ail the averred facts expressly upon information and belief. She then omits the latter qualification in her affidavit.- It-is apparent that what she thus states in form upon knowledge is in reality stated upon the same information and belief to which she referred in her complaint. If, however, in verifying the two documents at- the same time, she advisedly verified one upon knowledge and the other upon information and belief, we have an additional reason for strictly applying the wholesome rule of the cases cited, namely,, that the mere averment of facts as upon personal knowledge is not sufficient,.unless the circumstances are such-that it can fairly be inferred that the affiant had' personal knowledge of the facts so positively stated. No circumstances are disclosed in the affidavit or papers here from which such an inference can be drawn.

The only other point presented by the respondent is, that the defect in the affidavit to which we have referred, was not specified in the appellant’s notice of motion. There is no -merit in this objection. The defect was not an irregularity, but matter of substance. It went to the sufficiency of the affidavit, and related to the merits. Rule 37 of the General Rules of Practice was, therefore, inapplicable. ’(Andrews v. Schofield, 27 App. Div. 93.)

The order should be reversed, with ten dollars costs and disbursements, and the motion granted, with ten dollars costs.

Van Brunt, P. J., Rumsey, Patterson and O’Brien, JJ.,. concurred.

Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.