#### The National Broadway Bank in the City of New York, Resp’t, *v.*Stephen B. Barker, Def’t.

*(Supreme Court, General Term, First Department,*

*Filed May 15, 1891.)*

Attachment—Affidavit on motion to vacate.

An affidavit by the attorney of an attaching creditor upon information and belief that a levy under the attachment had been made, based upon information received from the sheriff, is insufficient to prove the existence of a lien on a motion to vacate a prior attachment. The non-production of an affidavit as to the fact by the sheriff is not excused by his refusal to make one, as it could be procured under § 885 of the Code.

Appeal by the Mattson Rubber Co., from an order denying a motion to vacate the attachment in this action.

*P. Q. Eckerson,*for app’lt; *William F. MacRae,*for resp’t.

Daniels, J.

The motion to vacate the plaintiff’s attachment, was made on behalf of the Mattson Rubber Company, in whose favor a later attachment had been issued against the property of the same defendant. To entitle the Mattson Rubber Co. to succeed in its motion, it was a fundamental fact to be established in its favor, that it had acquired a lien upon, or interest in, the debtor’s property after its seizure under the plaintiff’s attachment, previously issued in this action. Code Civ. Pro., § 682. To prove that this lien had been acquired, the attorney for the Rubber Co., stated in his affidavit that:

> “ That deponent is informed, and verily believes that the same is true, by James Young, a deputy sheriff of the city and county of New York, that both of said attachments were issued to the sheriff of the city and county of New York; that the same came into his hands as such deputy sheriff for the purpose of executthe same; that on the said 27th day of October, 1890, he attached the property of the defendant, Stephen T. Barker, consisting of waterproof goods and fabrics, sewing machines, etc., under the said attachment issued in favor of the above plaintiff at the defendant’s places of business, No. 27 Maiden Land and No. 8 College Place, New York city; and that subsequent thereto, and on the 27th day of October, 1890, he attached the same property under the said attachment issued by the said Mattson Rubber Company against the property of Stephen T. Barker, and that he now holds said property under and by virtue of both of said attachments ; that deponent has requested said deputy sheriff, James Young, and the sheriff of the city and county of New York to make an affidavit or certificate of these facts, but that they decline to so do, stating as the reason that it might be show-in a'preference in favor of one party against another.”

And no other proof was produced to establish that fact. This statement of the attorney was insufficient evidence of its existence. For it was wholly a matter of information. It was, in fact, the unsworn, and unauthenticated assertion of the deputy, *598without anything to corroborate or maintain it And mere information has been so«often held to be no proof of the fact related in it, that authority is not now required to support that conclusion.

An attempt has been made to excuse the want of evidence by the statement that the deputy declined to make an affidavit proving the fact that he had seized the same property under the attachment of the Eubber company. But that forms no legal excuse for failing to obtain the affidavit of the deputy. For the law has provided a means by which it eould have been regularly procured. Code Civil Procedure, § 885. The provision is .very simple and can be so readily complied with, that the failure to obtain the affidavit in that manner, presents no sound reason for accepting and acting on information not obtained from the party to be affected by it, or from some person identified in interest with him. The essential fact entitling the Eubber company to move to vacate the plaintiff’s attachment was unproved, and its motion was rightly denied.

The order appealed from should be affirmed, with ten dollars costs, and the disbursements on the appeal.

Van Brunt, P. J., and Lawrence, J., concur.