Opinion
October Term, 1897.
George Zabriskie, for the appellant.
Arthur C. Rounds and Charles E. Hughes, for the respondents.
In support of the order of the Special Term vacating the attachment, it is urged that the affidavit is insufficient, in that it does not show that the note in suit was payable when the attachment was obtained. By the terms of the note it matured April 18, 1897, and the attachment was issued April fifteenth. The affiant sought to show that the note became payable on the 15th day of April, 1897, because of action taken by the plaintiff under and by virtue of an agreement in writing between it and the maker of the note. The sufficiency of the allegations in this respect is challenged. They read as follows: "The said defendant also executed and delivered to the said bank its agreement in writing, whereby the said defendant agreed that, in case of its failure or insolvency, all or any claims or demands against the defendant held by the said bank should, at the option of the said bank, immediately become due and payable. The said defendant has failed in business and is insolvent, and is about to make an assignment of this property, as I have this morning been informed by Stephen W. Hays, the president and one of the directors of the defendant, in a conversation with him, and the said bank has elected that the note aforesaid should immediately become due and payable, and on the 15th day of April, 1897, the said bank presented the said note for payment at the place therein in that behalf mentioned, and demanded payment thereof, and payment was refused, and the said note remains wholly unpaid, except the sum of $13,964.49, and due notice of such election, presentment, demand and non-payment has been given by the said bank to the said defendant."
It is first said that it does not appear that the agreement was in force April 15, 1897, and in effective operation as to the note in suit. It seems otherwise to us. While the date of the agreement is not given, it necessarily appears that it was in existence on or prior to April fifteenth; otherwise its execution and delivery could not have been alleged. That fact being made to appear, the affiant was not called upon to show that the agreement had not been canceled, or to negative every other conceivable hypothesis by which the note could have been relieved from the operation of the agreement.
The respondents' second contention is that the agreement should have been presented to the court, so that it could have determined whether the payment of the note was accelerated by its provisions. It is difficult to discover a reason for presenting the agreement to the court, which would not be applicable to the note in suit. Both instruments are in writing and in the possession of the bank, and the cashier states in his affidavit that he has personal knowledge of them and of the transactions between the bank and the defendant. And in neither case does he present an exact copy of the written instrument in its entirety. All evidence submitted on an application for an attachment must be by affidavit. No other is competent. It quite frequently happens, therefore, that the best evidence cannot be produced. In such case it is sufficient if the affidavit produce legal evidence which proves to the satisfaction of the judge the fact alleged. ( Hanson v. Marcus, 8 App. Div. 318.) And an affiant's statement of their purport may constitute such legal evidence. It has been so held as to a variety of written instruments: assignments of the claim in suit ( Hall v. Stryker, 27 N.Y. 596); promissory notes in suit, and notice of protest ( Ladenburg v. Commercial Bank, 5 App. Div. 219; Waterbury v. Waterbury, 76 Hun, 51); judgments on which suit is brought ( Donnelly v. Corbett, 7 N.Y. 500), and executions and their return ( Conway v. Hitchins, 9 Barb. 378). There is no distinction in principle between writings of the character above mentioned and the writings in question.
The respondents insist that the use of the word "agreed" shows that the affiant was stating the legal conclusions drawn by him from the agreement, instead of the purport of it. If the word "promised" had been used, instead of "agreed," this suggestion would hardly have been made. "Promised" is the word almost always used in affidavits for attachments on promissory notes. If in this case the agreement for accelerating the maturity of the note had been embodied in the note, and the affidavit had stated that the defendant made its promissory note, whereby it promised to pay, six months after date, or immediately if it became insolvent, there would be no hesitation in holding the affidavit sufficient. The precedents are too firmly established to tolerate, at this time, the inquiry whether, by the use of the word "promised," an affiant, in that which follows it, states legal conclusions and not facts. But one meaning of the verb "to agree" is "to promise," and the two words are given as synonyms by the Century Dictionary. It seems to us, therefore, that the use of the word "agreed," in the connection in which it is employed, should not be held to characterize the language which follows as the legal conclusions of the affiant, instead of the context of the writing or its purport.
The authorities relied upon at Special Term are not in conflict with this view. In Ladenburg v. Commercial Bank (87 Hun, 269) the affiant, having no personal knowledge of the presentation and protest of the bills in suit, said that his information was founded upon a cable message. He did not state the contents of the cable message, or its purport, nor show that its language referred at all to the bills in suit, nor to what subject it related. Thus it appears that the court was not advised as to what was in the cablegram. In this case the court is at least informed of the contents and scope of the agreement. The principle decided in Hoormann v. Climax Cycle Co. ( 9 App. Div. 579) was that the mere averment of facts as upon personal knowledge is not sufficient unless the inference can fairly be drawn, from the facts and circumstances stated, that the affiant has personal knowledge. In this case it appears that the position of the affiant was such that he would necessarily have personal knowledge of these writings, but, in addition, he states that he had personal knowledge of the transactions between the parties.
The allegation of insolvency was based upon the statement of the president, who was also one of the directors, and the respondent insists that the statement was not made in the course of any business transaction in which he was authorized to speak for the company, and that, therefore, the statement was not that of the defendant. It seems to us that the statement was made in the ordinary course of business. The president was the executive officer of the defendant and, as such, authorized to represent it within the lines of its usual business. It wished to borrow money and applied to the plaintiff for a loan. The loan was made, and, to further assure the plaintiff against loss on account of it, the defendant executed a writing by which it promised that, in the event of its insolvency, the note should at once become payable. It had the right to make the agreement, and, having made it, was in duty bound to carry it out in good faith, the doing of which required the statement of fact made by the defendant's president.
The order should be reversed, with ten dollars costs of motion and printing disbursements, and the motion denied, with ten dollars costs.
PATTERSON, RUMSEY, WILLIAMS and O'BRIEN, JJ., concurred.
Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.