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N. Dains Sons Co., Plaintiff, v. Thomas McNally Co., Defendant

New York Supreme Court1909-11
65 Misc. 161

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion

majority opinion

Tompkins, J.

Under a long line of authorities the allegation in the affidavit of Frank M. Dain that the defendant is a foreign corporation, without giving the source of affiant’s knowledge, or showing facts justifying him in making averment based upon personal knowledge, is insufficient; and for that reason the court lacked jurisdiction to grant the warrant of attachment.

The courts have held that a warrant of attachment may be amended to make it conform to the facts stated in the affidavit, but I find no authority for an amendment by an affidavit supplying, facts that were essential to the court’s exercise of jurisdiction in the first instance. On the con trary, the authorities seem to be the other way. Because of the insufficiency of the affidavits upon which the warrant of attachment was granted I must grant the motion.

Motion granted.