#### The Mechanics & Traders’ Bank, Resp’t, *v.*James Loucheim *et al.,*App’lts.

*(8upyreme Court, General Term, First Department,*

*Filed January 24, 1890).*

1. Attachment—Affidavit.

An affidavit for an attachment must set forth the facts and circumstances from which the court may draw the conclusion of fact; a mere statement that defendant made a transfer with intent to defraud creditors is simply a conclusion of the affiant and insufficient.

3. Same.

Where, from the situation of the parties, the presumption is that the affiant has not personal knowledge of the facts alleged, although the allegation is made positively, apparently upon his knowledge, the court should reject the allegation unless the affiant sets forth the facts and circumstances showing why he has personal knowledge.

*189Appeal from order denying motion to vacate attachment against the property of the defendants.

*Franhlin Bien,*for app’lts; *A. J. Dittenhoeffer,*for resp’t.

Van Brunt, P. J.

It would be undoubtedly true that if the conclusions sworn to by the person who made the affidavit upon which the attachment in this case was granted had evidence' to support them the attachment would have been properly granted.

The office of an affidavit is to set forth the evidence from which the court may draw conclusions of fact, differing in this respect radically from a complaint which should only set forth conclusions of fact and not the evidence of the correctness of these conclusions. The affidavit in question states that on or about the 5th of October, 1889, with intent and design of defrauding creditors, the defendant, Virtue, purported to sell, assign and transfer to the defendant, Loucheim, for a nominal consideration, all his right, title and interest in the entire stock, assets and property and business of the firm of Loucheim & Co., of which he was a partner. This allegation is simply a conclusion of the affiant’s, without there appearing in the affidavit a particle of evidence to support it.

It is claimed that because the allegation is made positively, apparently upon the knowledge of the affiant, that the court is bound to act upon it.

We do not think that this is the rule; upon the contrary, where from the situation of the parties the presumption is that the affiant has not personal knowledge of the facts alleged, it is the duty of the court to reject the allegation, unless the affian’t set forth the facts and circumstances showing why he has personal knowledge. *Tim*v. *Smith,*93 N. Y., 91.

The situation of the president of the plaintiff, and his relations to the defendants, was not such as that he would be likely to have personal knowledge of the transactions taking place between the defendants, and if he had such knowledge he was bound to set forth how he had acquired it, and what it was, so that the court could draw its conclusions and not the affiants.

The affidavit contains other conclusions as to the effects of the assignment made by the defendant Loucheim for the benefit of creditors, which .may be true or not, dependent upon other facts which are not set forth in the affidavits.

The only evidence of the truth of these allegations is the assignment itself, which is annexed to the papers, and if it should so happen that Loucheim had no individual debts, then the conclusion in the affidavit would be untrue.

We are furnished with no evidence upon this point. Fraud is not to be presumed. If a party claims fraud, he must put before the court legal evidence of the fraud, and not merely his conclusions that fraud has been committed.

The order appealed from must be reversed, with ten dollars costs and disbursements, and the attachment vacated.

Brady and Daniels, JJ., concur