#### Edwin Hilborn, Respondent, *v.*Pennsylvania Cement Company, Appellant. Edwin Hilborn, Appellant, *v.*Pennsylvania Cement Company, Respondent.

(No. 1.)

(No. 2.)

First Department,

June 2, 1911.

Attachment — motion to vacate — additional affidavits — bills and notes, — instrument not negotiable — liability of indorser — sale — verifiea- . tion of complaints proof of facts alleged.

■ Where a motion to vacate a warrant of attachment is made upon án affidavit merely setting forth .the proceedings in the action and the insuffi- ,- eiency of the moving papers, the plaintiff is not entitled to submit new affidavits in opposition. The motion must be decided upon the original . papers only. . ■

Where the plaintiff upon such motion submits new affidavits and the court refuses to consider.them, he is entitled to have the order denying the motion recite such facts, but as neither the Special Term nor the Appel- •. late Division could receive the new'affidavits in support of the attach- . ment, the court on appeal will not reverse an order refusing to resettle the first order so as to recite the submission and rejection of the additional affidavits.

An instrument whereby the maker agreed to pay a certain sum of money at a fixed time and place, but which is not made payable to any person or to bearer, is not negotiable, and one who indorses it incurs no obligation thereby.

A complaint which sets forth the instrument, alleges that defendant, who was not the maker, indorsed the same and transferred it for value to plaintiff’s assignor, does not state a cause of action.

*443Where the complaint, which for a second cause of action alleged a sale and delivery of goods by plaintiff’s assignor to defendant and non-payment, is verified' by the plaintiff, who was not a party to the sale, on information and belief without a. disclosure of the sources of his information, it furnishes no proof on a motion for a warrant of attachment of the facts alleged therein.

A warrant of attachment granted upon such complaint and upon an affidavit which sets out that plaintiff possesses the promissory note set forth in the first cause of action, letters from defendant to plaintiff’s assignors and admissions of the defendant, but which makes no reference whatever to the second cause of action, should be vacated since it does not appear that one of the causes of action specified in section 635 of the Code of Civil Procedure exists against the defendant.

Appeal by the defendant,- the Pennsylvania Cement Company, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 22d day of March, 1911, denying the defendant’s motion to vacate a warrant of attachment.

Appeal by the plaintiff, Edwin Hilbom, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 17th day of April, 1911, denying the plaintiff’s motion to resettle the order entered herein on the 22d day of March, 1911.

*Edgar N. Dollin,*for the plaintiff.

*L. Laflin Kellogg,*for the defendant.

Ingraham, P. J.:

There was presented to a justice of the Supreme Court the summons and complaint and an affidavit of one Hilbom, and upon that complaint and affidavit a warrant of attachment was granted under which the sheriff has levied upon certain property, of the defendant. Subsequently the defendant appeared in the action, and upon an affidavit of the defendant’s president, which stated the issuing of the summons and complaint, the granting of the attachment on March 1, 1911 the appearance on the same day of the defendant; that an undertaking had been given discharging the attachment; that the defendant desires to vacate and set aside said attachment on the ground that the same was irregularly issued and on insufficient papers and that the court Was with*444out. jurisdiction to grant the. same for the reasons stated in the notice of motion, and that no previous application had been made to set aside the attachment. That motion coming on to he heard, the plaintiff claimed the right to sustain the attachment by additional affidavits and submitted those additional affidavits to the court; that in reply the court said that it would accept the affidavits and determine whether of not they could be read in opposition to the motion ■ to vacate the attachment. Subsequently the court denied the motion to vacate the attachment but at the same time held that the affidavits would not be received, and an order was thereupon entered denying the motion without reciting the tender of the additional affidavits by the plaintiff to support the attachment or containing any reference to them. The plaintiff then made a motion to resettle this order so that the same should recite the papers as read and filed on the motion, which resulted in the order, or that the said order contain a recital that the said affidavits were submitted and tendered by plaintiff upon the hearing of the motion and. filed, but that the same were not considered by the court. The court denied this .motion to resettle the order and from that order denying the motion to resettle the plaintiff appealed, and the defendant also appealed from the order denying the motion to vacate the attachment, and these appeals were both submitted. •

We think the plaintiff was entitled to have the order state the fact that he had submitted these affidavits in opposition' to the defendant’s motion to vacate the attachment and that the court had refused to receive them; but we think the court below was clearly right in refusing to receive these affidavits or to consider the facts therein stated upon.the motion to vacate the attachment. ' By section 682 of the Code of Civil Procedure the defendant or a person who has acquired a subsequent lien upon his property after it was attached may at anytime before the application of the attached property, or the proceeds thereof to the payment of a judgment recovered in the action apply to vacate or modify the. warrant. And section 683 provides that ah application specified in section 682 may be founded only upon the papers upon which the warrant was, granted, in which case it.must be made to the court, or if the warrant was granted by *445a judge out of court to the same judge in court or out of court and with or without notice as he deems proper. Or it may be founded upon proof by' affidavit on the part of the defendant; in which case it must be made to the court, or, if the warrant was granted by a judge out of court, to any judge of the court upon notice; and it may be opposed by new proof by affidavit on the part of the plaintiff tending to sustain any ground for the attachment recited in the warrant and n© other. Under this section it is only where the motion to vacate the attachment “ be founded upon proof by affidavit on the part of the defendant ” that it may be opposed by new proof by affidavit on the part of the plaintiff, This motion was made, as expressly stated, both in the notice of motion and in the affidavit which was annexed to the notice of motion, upon the ground that the attachment- vvas irregularly issued' and on insufficient papers and that the court was without jurisdiction to grant the same for the reasons stated in the notice of motion. There was no proof by affidavit or otherwise upon which the motion was made, the affidavit of the defendant’s president merely stating the proceedings in the action, and that the motion was made not upon proof, but upon the insufficiency of the papers upon which the attachment was granted. While we think the trial judge should have resettled the order so as to allow it to appear that these affidavits were actually submitted to him, at the same time as we have the papers all before us on this appeal it; would he a useless ceremony to reverse the order and require a resettlement when neither the court at Special Term nor this court on the appeal would have the right to receive the affidavits in support of the attachment.

We have then to determine whether the court below correctly denied the motion to vacate the attachment. To entitle the plaintiff to a warrant of attachment he must show by affidavit that one of the causes of action specified in section 635 of the Code of Civil Procedure exists against the defendant. (Code Civ. Proc. § 636, subd. 1.) There are two causes of action alleged in the complaint. . Por a first cause of action plaintiff alleges that on or about October 18,1910, one Hookey made and delivered to the defendant his promissory note in writing, a copy of which is set forth in the complaint. That instrument *446is dated *“*New York, Oct. 18, 1910,” and is as follows: “ Four months after date I promise to pay Ten hundred forty-four *'71/100*dollars at 23 Wd. Bank. Value received” (signed) Wm. T. Hookey. It is then alleged that the defendant thereafter and before maturity indorsed and delivered said note to the Taylor Iron and Steel Company, a corporation duly organized and existing, for value; that at maturity said note was duly presented for payment hut the 'same was not paid, whereupon it was duly protested for non-payment, due notice of. which was given to the defendant; and that before 1⁄86"com-mencement of the action'the Taylor Iron and Steel. Company duly assigned and transferred to plaintiff all its right, title and interest in and to said note and all claims in its favor arising out of the non-payment thereof. This complaint was verified by the plaintiff who also made an affidavit upon which the attachment was granted in which he stated that he had in his possession the promissory note referred to in the first cause of action and also letters written by the defendant to the Taylor Iron and Steel Company, letters written by the Taylor Iron and Steel Company to the defendant, the statement of the said Taylor Iron and Steel Company, admissions made by the defendant in said letters and statements made to deponent over the long distance telephone.. What those letters and statements were is not stated. Plaintiff was not a party to the transaction.

It is quite clear that this first cause of action alleged in the complaint does not contain a statement of a cause of action against the defendant. The. alleged promissory note is an •instrument by which Hookey agreed to pay to no person, either an actual person or to hearer, a sum of money. The action is not against the maker of the note but against an indorser. By section 20 of the Negotiable Instruments Law (Consol. Laws, chap. 38; Laws of 1909, chap. 43) it is provided that an instrument to he negotiable'must be in writing and signed by.the maker and must be payable to order or to bearer. By section-■21 it is.provided that an instrument is payable to order when it is drawn payable to the order of. a specified person or to him or his order. It is evident, therefore, that this instrument is not a negotiable instrument *(Douglass*v. *Wilkeson,*6 Wend. 637; *447Daniel Neg. Inst. [2d ed.] § 102), and the instrument sued on not being a negotiable instrument an indorser incurred no obligation by his indorsement.

The complaint also contains a second cause of action, but there was no proof by affidavit that such a cause of action exists against the defendant. This second cause of action is to recover damages for the'violation of a contract made between the defendant and the Taylor Iron and Steel Company. It is alleged that under this agreement the Taylor Iron and Steel Company between the 1st of January, 1909,'and the 21st of February, 1911, rendered services to the defendant in and about the manufacture of certain steel castings, furnished the materials necessary in said work and incidental thereto, and delivered said castings to the defendant. That the agreed price was $9,428.85, no part of which has been paid except $4,251.20, leaving abalance due and owing of $5,177.65. And that the Taylor Iron and Steel Company duly assigned and transferred to the plaintiff all its right, title and interest in and to the aforesaid claim and cause of action against the defendant. Plaintiff’s affidavit makes no reference to this cause of action. There is no evidence before the court that any such contract was made, or the terms of the contract, or that the castings had been actually delivered, except the bare allegation of the complaint, which was verified by the plaintiff, not a party to the contract, with the usual verification on information and belief. There was, therefore, no proof of the facts upon which this cause of action was based.

It follows, therefore, that the order denying the motion to resettle the order is affirmed, but without costs, and the order denying the motion to vacate the attachment reversed, with ten dollars costs and disbursements, and motion to vacate the attachment granted, with ten dollars costs.-

McLaughlin, Laughlin, Clarke and-Scott, JJ., concurred.

On the defendant’s appeal, order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.

On the plaintiff’s appeal, order affirmed, without costs.