Ellis v. Rugg

PARKER, P. J. One of the grounds upon which the judgment debtors applied to the county judge to vacate the order of March 1st was that he had no jurisdiction to make it, because of the insufficiency of the affidavit upon which it was granted. It was granted upon the affidavit of E. W. Cushman, made February 24, 1904, and his statement therein that the bank had personal property of the judgment debtors exceeding $10 in value is made entirely upon information and belief, and does not state the "sources of his 943 information and grounds of his belief.” Substantially it states no more than that the cashier of such bank, who had charge of its business, made statements to him from which he believes that the bank had such property. What the cashier said to him is not disclosed. Not a single fact is 'stated which would tend, if true, 'to convince the judge that the bank had any such property&emdash;merely that from what the cashier said to him the affiant thinks it had. This was not “competent evidence” which should “satisfy a judge,” and hence the applicant was not entitled to the order. “The opinion of the affiant is not a fact upon which the judge’s conclusion may be based.” Duparquet v. Fairchild, 49 Hun, 471, 472, 2 N. Y. Supp. 264; First National Bank of Hoosick Falls v. Wallace, 4 App. Div. 382, 384, 38 N. Y. Supp. 851; Matter of Parrish, 28 App. Div. 22, 50 N. Y. Supp. 735; Delafield v. Armsby Co., 62 App. Div. 262, 71 N. Y. Supp. 14; Citizens’ National Bank of Towanda v. Shaw, 46 Hun, 589. And particularly should such an affidavit be held insufficient to sustain an injunction against the disposal of one’s property. It is claimed that the judgment debtors have no standing in court to oppose the order in question. But the order enjoins the bank from paying over or delivering to them their property, and it even enjoins them from interfering with such property. For that reason they have the right to challenge the sufficiency of the proof upon which the county judge assumed to grant the order. For these reasons, without discussing the further grounds urged by the judgment debtors against the jurisdiction of the county judge, the order appealed from must be reversed, with costs of this appeal, and the order of March 1st should be vacated with $10 costs of that motion. All concur.