New Rochelle Coal & Lumber Co. v. McGraw , 38 N.Y.S. 353 ( 1896 )

Per Curiam :

■The action is to recover the- amount of. three promissory notes,-, made by the defendant to the plaintiff, and also the value of goods sold and delivered on an open , account. The ground on which it was sought to obtain the attachment was, that the defendant .made,, a false statement, in writing, of his financial responsibility and standing, for the purpose of procuring an extension of credit. It appears that-the notes had been delivered by, and the goods sold to,, the defendant before the alleged,-false statement on his part. The false statement •claimed to., have, been signed by him is the implied warranty or assertion of title, contained in an assignment to the plaintiff of a mechanic’s lien, filed by the defendant against certain real property, and in an order- directing one Keating to pay the plaintiff the sum of $600 and deduct the same from the last payment due the defendant for work on Keating’s house. The only evidence to show that nothing was due from Keating to the defendant at the time of the order, was' the declaration made by Keating to the plaintiff’s agent, and the only evidence of the invalidity of the mechanic’s lien was an allegation in the answer interposed in a suit by the plaintiff to enforce the mechanic’s lien, that the defendant had previously assigned his interest therein to his wife, Elizabeth McGraw. Ho affidavits by Keating or by Osiecki, the defendant' iir the mechanic’s lien suit, were produced. The affidavits on the part tif'file "plaintiff -show that- Keating and Osiecki are' entirely" accessible, and no reason is given, why affidavits, from these'parties were not obtained. The affidavit by defendant avers the validity of his claims against both person's, and"denies-the assignment of the" mechanic’s lien to his wife. In this denial the defendant’s wife, by-her affidavit, joins. .... • , -.

. We think-the order below was correct.. If ..it be conceded that these -two instruments executed by the. defendant were, within the' meaning of the Code,' statements in writing under his-hand of his title to the choses in action assigned,., and also pf the existence and validity of such choses in action, still the only., proofs tending to establish the falsity of such statements were the hearsay statement pf Keating, and the allegation. of Osiecki’s answer. These statements are unavailing certainly when denied by defendant, because it. was not shown that the persons from whom they .-were obtained were absent, or that .their depositions could not be procured... (Yates v. North, 44 N. Y. 271 ; Steuben, County Bank v. Alberger, 78 id. 252.)

The order - appealed from should be affirmed, with ten dollars--costs and disbursements.

All concurred.

Order affirmed, with ten dollars, costs and disbursements.