Opinion
October Term, 1897.
A.J. Dittenhoefer and David Gerber, for the appellant.
Charles W. Pierson, for the respondent.
Present — VAN BRUNT, P.J., BARRETT, RUMSEY, WILLIAMS and PATTERSON, JJ.
Order affirmed, with ten dollars costs and disbursements, on opinion of BEEKMAN, J
The following is the opinion of BEEKMAN, J.
The plaintiff purchased 1,500 shares of the capital stock of the Atchison, Topeka and Sante Fe Railroad Company, relying, as she claims, upon certain statements with respect to the financial condition of the company made by the directors, or authorized to be made and published by them. These statements she alleges to have been false, and that they were known by the directors to be false at the time they were so made, authorized and published, and were promulgated by them for the purpose of influencing the market value of the stock of the company, and to induce persons to purchase the same. The defendant Baring is sued as one of the directors who took part in the acts complained of. As he resides in London, Eng., and it was impossible to make personal service of the summons upon him, an order of publication was obtained and an attachment against his property procured on the ground of his non-residence. He has not appeared generally in the action, but on a special appearance for the purposes of the motion only, now moves to vacate the attachment on the papers on which it was granted.
The plaintiff in her affidavit has alleged that the defendant Baring was one of the directors of the road, and that he took an active part in promulgating the statements complained of, and that he knew such statements to be false. Although these charges are apparently made by the affiant upon knowledge, there is nothing in the nature of the case or in her relation to the company and the directors at the time the acts charged are alleged to have been committed, which would justify the inference that she had any personal knowledge upon the subject. She was then an entire stranger to the corporation and its affairs, and acquired an interest therein only after the occurrence of the acts in question. It has been repeatedly held that where the nature of the case is not such as to import a personal knowledge by the affiant of the matters set forth in his affidavit upon which an attachment is sought, he must, if he assumes to speak of his own knowledge, show how it was that such knowledge was acquired. Among the most recent cases on this subject are Hoormann v. Climax Cycle Co. ( 9 App. Div. 579); Tucker v. Goodsell Co. (14 id. 89.)
In the latter case the court said (p. 91): "The court has repeatedly held that to entitle a plaintiff to this severe and summary remedy he must show the proper facts by affidavit, that is, he must furnish satisfactory proof of such facts. Where the affiant, owing to his relation to the parties and to the cause of action, plainly speaks as an actor in the transaction, the court frequently treats his verified averments of facts, which may naturally have come within his actual observation or personal action, as satisfactory proof thereof, as in Ladenburg v. Com. Bank ( 5 App. Div. 220), where, however, he does not speak as such a direct actor, where, in fact, he speaks apparently as a stranger to the transaction, it matters not how positively he so speaks, how firmly he asserts his personal knowledge of the facts averred, he must still furnish the evidence of such facts. Under such circumstances, his verified allegation `shows' nothing `by affidavit.' He simply pleads the facts. He pleads them positively, it is true, and upon personal knowledge, but he does not prove them, and a person standing as he does in relation to the cause of action must prove them."
The plaintiff in this action seems to have come entirely within the rule thus laid down. As I have already said, there is absolutely nothing to show that she stood in any such relation towards the company and the directors, or towards the acts complained of at the time they are alleged to have taken place, as to import that she had any personal knowledge whatsoever with respect to the matters charged against the defendant. On the contrary, so far as the papers disclose, she knew nothing whatsoever regarding these matters until after the alleged false statements had been published. It is essential to her cause of action that she should make proper proof of the facts that the defendant was a director of the company; that he took part in making the statements complained of, and that he knew, or had reason to believe, that such statements were untrue. ( Wakeman v. Dalley, 51 N.Y. 27; Arthur v. Griswold, 55 id. 400.) In order to support an attachment, these matters must be proven, not merely alleged, as in the complaint; and, as the plaintiff has failed to do so in conformity with the rules established by the decisions in such cases as this, I am constrained to find that the proofs were not sufficient to sustain the attachment; and the motion to vacate the same is, therefore, granted, with ten dollars costs.