Cohen v. Rothschild , 43 N.Y.S. 509 ( 1897 )

McCarthy, J.

It is not necessary in.a complaint required by the provisions of the Code of Civil Procedure, section 549, authorizing the arrest of the defendant in an action for money received, that the complaint should expressly aver that the money was received in a fiduciary capacity.

A statement of facts showing that it was so received is sufficient and is' proper pleading. Moffatt v. Fulton, 132 N. Y. 507, 514, 515, 516, reversing the General Term and affirming the Trial Term.

In this case it is a necessary inference from the facts alleged that the money was received in a fiduciary Capacity,' and the statute does not require that they should be labelled with that name.

But the serious objection to the appellant’s papers is that in the complaint, which by his affidavit he makes part of this application, he alleges: .

“ Fourth. Upon information and belief, plaintiff avers, that heretofore and between the 1st day of January, 1896, and the 1st day of June, 1896, the said Jahl collected the amounts of moneys-set out in Schedule A, hereto annexed, from which said amount-the above-named defendant retained the interests of said Jahl herein, being the interests so assigned to the plaintiff herein, with the understanding and upon condition that said Rothschild retain from said commission, aggregating the sum of three hundred and forty-seven ($347) dollars, the sum- of eighty-six and seventy-five one-hundredths ($86.75) dollars, being one-fourth part thereof on account of said J ahl’s indebtedness to the defendant, and that he delivered the balance thereof, viz., the sum of two hundred and sixty and twenty-five one-hundredths ($260.25) dollars to the plaintiff herein.”

There is not sufficient evidence in these papers that the claims were collected by Jahl, or, if- collected, were ever paid over to the defendant.

The mere .statement that Stahl did so, without showing appellant’s opportunities for knowledge of such facts, will not suffice.

Had appellant alleged that he saw these claims collected by Jahl and paid over to the defendant, or that the defendant admitted that they were collected by Jahl and paid over to him, all would have been well.

But no, although alleging on information and belief, appellant fails to state the source or ground of such information and belief, and, therefore, under the numerous decisions ih this and the Supreme Court, it is insufficient and positively defective and fatal.

Again, the. affidavit of the appellant shows that the facts alleged are not within his personal knowledge, more particularly at folios 14 and 15.

It is hearsay and could only be had from information received from Jahl or some one else.

Had the appellant stated who his informant was, or showed by some conversation between the defendant and himself, in which these things were admitted, all would have been satisfactory. Hoormann v. Climax Cycle Co., 9 App. Div. 579.

Order must he affirmed.

Fitzsimons, J., concurs.

Order affirmed.