Pflugheber v. Leske.

PFLUGHEBER v. LESKE.

N. Y. COMMON PLEAS, SPECIAL TERM; AUGUST, 1882.

§ 549.

Orders of arrest.—In actions for personal injuries.- Practice of court of common pleas in granting.

In the court of common pleas for the city and county of New York, the practice is not to grant orders of arrest in actions for personal injuries, unless it is satisfactorily shown that there is danger that the defendant will depart from the State.*

An instance of a defendant being held to bail in a nominal sum, in an action for a breach of promise to marry and for seduction under such promise.

Motion by defendant to vacate an order of arrest.

The action was brought to recover the sum of $5,000 damages for a breach of promise to marry and for seduction under such promise.

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On an affidavit charging, upon information and belief, that the defendant, a foreigner, was about to depart from the State and go abroad, an order of arrest was granted in which the bail was fixed at the sum of $500. On the hearing of the motion, the defendant admitted the act of copulation with the plaintiff, but denied the promise to marry, the seduction, and any design to depart from the State; and in support of the last mentioned denial showed that he had, previous to the bringing of the action, declared his intention of becoming a citizen, and had enlisted in the national guard.

Traitel, Platzek & Otterbourg, for motion.

Jno. A. Dinkel, opposed.

*For a fuller statement of the practice in the court of common pleas, see Davis v. Scott, 15 Abb. 127; and see, also, Brophy v. Rodgers, 7 N. Y. Leg. Obs. 152.

Pflugheber v. Leske.

VAN BRUNT, J.-In view of the gross abuses which have arisen resulting from the granting of orders of arrest in actions for personal injuries, this court has, following the rule adopted in the old supreme court, refused such orders, unless it was satisfactorily shown that there was danger that the defendant would leave the State.

In a great majority of cases, such orders are obtained merely for the purpose of oppression and vexation, and the bail required is many times larger than any possible recovery. I remember that in one term of this court some years ago ten cases of personal injury were tried, the causes of action being for assault and battery, and breach of promise of marriage, and seduction. The bail in these cases aggregated $30,000, and the total amount of the recoveries was less than $600. These facts seemed to illustrate in a remarkable manner the wisdom of the practice of this court.

In this case, it is true that the plaintiff swears that somebody told her that the defendant had threatened to leave the country; but the facts stated in the defendant's affidavit in support of his denial of any intention to leave the country, seem more than to negative the allegations of the plaintiff. The order, perhaps, should not be vacated, but the bail should be reduced to one dollar.

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Orvis v. Lambeau.

ORVIS . LAMBEAU AND ANO.*

SUPREME COURT, FIRST DEPARTMENT, SPECIAL TERM; OCTOBER, 1882.

§§ 439, 443, 526, 638, 1932.

Warrant of attachment. When service of summons upon one of two defendants, jointly liable, will uphold.— Service of summons without the State.— What defects, in notice to be subjoined to such summons, are not fatal or jurisdictional.— Verification of pleading.— When all allegations of complaint are on information and belief, verification on information and belief is proper.

Where a warrant of attachment is granted in an action against two defendants jointly liable, service of the summons upon one of such defendants, within thirty days after the granting of the warrant, is sufficient to uphold the attachment. [']

Where, in personal service to be made without the State, the notice required by section 443 of the Code to be subjoined to the summons was not subscribed by the plaintiff's attorney, and omitted the day of the month on which the order was granted, pursuant to which such service was made,- Held, that neither of these defects was fatal nor jurisdictional;[2] and that a warrant of attachment granted in the action would not be vacated therefor. The warrant may accompany the issuing of the order for such service, and so precede the commission of these defects, and be valid until a failure to serve the summons within the proper time. [*] t

There are two modes of making allegations recognized by the rules of pleading; one absolute, or unqualified, and the other, qualified, or upon information and belief. The verification of a pleading is only required to be appropriate and adapted to the mode of allegation contained in the pleading; and although the form contained in section 526 of the Code is adapted to a pleading containing both modes, if all the allegations be absolute, the verification should be absolute, and if all the allegations be qualified, the verification should be qualified; and it is not necessary to employ the twofold form of verification for a pleading

* An appeal by defendant Goldschmidt to the general term, is pending. See Blossom v. Estes, 84 N. Y. 614, affirming, 22 Hun, 472; Mojarrieta v. Saenz, 80 N. Y. 547; Taylor v. Troncoso, 76 N. Y. 599; Bogart v. Swezy, 26 Hun, 463.

Orvis v. Lambeau.

which contains but one mode of statement. [*] [*] A pleading is verified when the deponent affirms the truth of its allegations to the degree stated in such pleading. ['] *

Accordingly, where all the allegations of a complaint were upon information and belief, and the form of verification was, "that the foregoing complaint is true as he [the affiant] is informed and believes," etc., Held, that the complaint was well verified. ['] [*]

Motion by defendant Goldschmidt to set aside the service of summons and complaint by publication, and to vacate a warrant of attachment.

The action was brought to recover a money judgment for goods sold and delivered to the defendants as copartners. All the allegations of the complaint were upon information and belief, and it was verified by the plaintiff's attorney. The verification set forth, "that the foregoing complaint is true, as he is informed and believes," and it then proceeded to state the source of the affiant's information and belief, and the reason why the complaint was not verified by the plaintiffs.

* Section 524 of the Code provides that, unless the allegations of a pleading are therein stated to be made upon information and belief of the party, they must be regarded, for all purposes, including a criminal prosecution, as having been made upon the knowledge of the person verifying the pleading. This section is new; and for the end sought to be attained by its enactment, see Mr. Throop's note to section 524 of his edition of the Code (1880), and see, also, Neuberger v. Webb, 24 Hun, 347; Broughton v. Downey, 21 Id. 436; Bowghen v. Nolan, 53 How. 485, S. C., 5 W. Dig. 100; Ladue v. Andrews, 54 How. 160, S. C., 5 W. Dig. 262; Stent v. Continental Natl. Bank, 5 Abb., N. C., 88; Mertraz v. Pearsall, Id. 90.

Where the complaint contained two counts, and the answer consisted of two paragraphs, the first denying positively the allegations in the first count of the complaint, and the second paragraph setting forth that the defendant had no knowledge or information sufficient to form a belief as to the truth of the matters contained in the second count of the complaint, it was said of the second paragraph of the answer, that, it was not an allegation upon information and belief, but a denial tb'at the defendant had either knowledge or information upon which he was enabled to form a belief, and that both forms of denials were positive; and it was held upon this state of facts, that it was needless to insert in the verification of the answer the words, "except as to the matters therein stated to be alleged

Orvis v. Lambeau.

The warrant of attachment against the joint property of the defendants was granted on February 7, 1882, and the order for service by publication, with the option of personal service without the State, was made on March 1, 1882. Personal service of the summons, with personal service notice, a copy of the complaint, and order for service by publication, was made upon the defendant Lambeau, without the State, on March 6, 1882, but service upon the defendant Goldschmidt was not made until March 14, 1882, and was then effected without the State.

The further facts are sufficiently stated in the opinion.

Herman Frank, for defendant Goldschmidt and motion.

Herbert E. Kinney, opposed:

Cited as to the sufficiency of service upon one of two joint debtors, Code of Civ. Pro. § 1932; Northern Bank

on information and belief," because none of the matters were so alleged. Section 526 does not prescribe any particular words in which the verification must be made, but merely provides that it must be to the effect stated in that section. Bowghen v. Nolan, 53 How. 485, S. C., 5 W. Dig. 100.

Where the complaint contained no allegations upon information and belief, and the verification was to the effect that it was true of the pleader's own knowledge, "except as to the matters therein stated on information and belief, and as to those matters he believes it to be true," it was held, that as under section 524 all the allegations of such a pleading must be regarded as having been made upon the knowledge of the party verifying, the verification was to the effect that the pleading was true to the knowledge of the deponent, and that the remaining words were surplusage, and did not impair the force of the verification. Ladue v. Andrews, 54 How. 160, S. C., 5 W. Dig. 262.

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In Stent v. Continental National Bank (5 Abb., N. C., 88), per DONOHUE, J., it was said: Under the old Code, the mode of pleading allowed an answer positively den ving, when, in fact, that denial was simply on information, and so the verification could show. I do not understand the Code, as it now stands, as allowing such a verification; and, therefore, the denial on information must be in the answer, and so stated."