Opinion
February 4, 1910.
Clarence M. Lewis, for the appellant.
Charles Lex Brooke, for the respondent.
The action is brought to recover over on a judgment recovered by one M. Llewellyn Griffith against the defendant in the District Court, second judicial district, county of Washoe in the State of Nevada on the 2d day of September, 1909, which has been assigned to the plaintiff. The warrant of attachment was issued upon the ground of non-residence of the defendant. The motion to vacate it was made on the original papers only and was based upon the grounds: (1) That the papers upon which it was granted were insufficient to show that the defendant was a non-resident of the State; (2) that the complaint fails to state facts sufficient to constitute a cause of action, and (3) that the identity of the defendant with the judgment debtor was not sufficiently shown.
The motion, having been made on the original papers, virtually presented only a question as to the sufficiency of the papers to confer jurisdiction on the court to grant the warrant, for the rule is well settled that in such case the papers on which the warrant was granted must be liberally construed in favor of the plaintiff and every legitimate inference from the facts shown must be drawn in his favor. ( Stewart v. Lyman, 62 App. Div. 182; Everitt v. Park, 88 Hun, 368.) It is sufficient, therefore, if the original papers show a prima facie case for an attachment. We are of opinion that they do. It appears by correspondence between the plaintiff and the defendant, prior to the recovery of the judgment in Nevada, that the plaintiff is a physician and that the defendant was indebted to him for professional services rendered before the defendant went West. This correspondence extends over a period of more than one year, and all of it shows that the defendant was engaged in business and sojourning, at least, in Nevada, and the liability was conceded. The affidavit of the plaintiff shows, among other things, that "the defendant G.L. Rickard is not a resident of this State but resides in the State of Nevada, as I am informed and believe. My information and belief is based upon statements made to me by the said Rickard personally." Reference is then made to the correspondence. We are of opinion that this affidavit, together with the correspondence and the recovery of the judgment in Nevada, sufficiently show the non-residence of the defendant. It is a fair inference from his affidavit that defendant said to him at a personal interview that he resided in Nevada. Of course, it would have been more satisfactory if he had quoted to us the words or the substance of the words used by defendant and that is ordinarily required; but on the whole we deem the fact of non-residence sufficiently shown.
With respect to the cause of action, it appears that the recovery was on an assigned claim of the plaintiff for the professional services for which liability was conceded. It is alleged that the court in which the recovery was had in Nevada was a competent court of general jurisdiction, and it is presumed in favor of such a judgment that the court duly obtained jurisdiction over the person of the defendant and was authorized to enter the judgment in personam. ( Smith v. Central Trust Co., 154 N.Y. 333.)
The further objection is made that it does not appear that the plaintiff's claim is due. It is alleged that it is owing, but the papers do not contain the express allegations that it is due; such an allegation is also usually required. The argument is made that it may not be due, but we are of opinion that the nature of the claim sufficiently shows that it is due. A judgment for a sum of money is necessarily due.
The further objection is made that the defendant is not sufficiently identified as the party against whom the recovery was had in Nevada. It appears by the complaint that the recovery was had against the defendant herein named. The claim is made that no defendant is positively named in the title of this action and that, therefore, this allegation is of no value, and further, that there could be no valid judgment against a defendant in that form, and the case of Goldberg v. Markowitz ( 94 App. Div. 237; affd., 182 N.Y. 540) is cited as authority for that contention. A transcript of the judgment, however, is annexed to and forms part of the complaint and that shows that the action was against, and that the judgment was recovered against G.L. Rickard. Upon the trial it may be shown that the defendant sued herein was the G.L. Rickard against whom the judgment was recovered in Nevada, and if so, the plaintiff will be entitled to recover on proof of the other material facts. ( Rice v. Coutant, 38 App. Div. 543; Gottlieb v. Alton Grain Co., 87 id. 380; affd., 181 N.Y. 563.)
It follows, therefore, that the order should be reversed, with ten dollars costs and disbursements, motion denied and attachment reinstated, with ten dollars costs.
INGRAHAM, P.J., CLARKE, SCOTT and MILLER, JJ., concurred.
Order reversed, with ten dollars costs and disbursements, motion denied and attachment reinstated, with ten dollars costs.