184 A.D. 160 | N.Y. App. Div. | 1918
The defendants, with the exception of Solana, were the officers and directors of the Naco National Oil Land and Mining Company, Ltd., of Mexico. Solana was the counsel for said company. Plaintiff secured an attachment upon property within the State belonging to Carrero, and from the denial of a motion to vacate that attachment this appeal is taken. Upon the 4th day of August, 1917, the defendants negotiated for a contract between the plaintiff and this Naco Company. The proposed contract was put in writing. By the terms thereof the Naco Company, which was the party of the first part, employed the plaintiff as its agent, broker and representative to assist it in raising capital to procure and develop certain oil wells and mines and to assist in financing the said company, giving to the plaintiff the full power to organize and incorporate an American company with a capital of $10,000,090. In this proposed contract were provisions for the capital stock of said company, of which the Naco Company was to have 3,500,000 shares, which were to be sold by an underwriting syndicate for the purpose of raising $1,000,000, to be paid to the Naco Company. The plaintiff, as party of the second part, was to receive five per cent commission upon any sale of stock and what stock remained unsold after the raising of this $1,000,000 was to be given to this plaintiff, in addition to commissions named. The Naco Company was thereafter to transfer its property to this American company. This contract, though purporting to be made by the Naco Company, was signed by the plaintiff and these four defendants. After the contract was so signed, a 6th provision was added, reading as follows: “6th. This agreement will be void if after sixty days from this date, the final agreement is not signed by both parties.” To this 6th clause were appended the signatures of this plaintiff and three of the defendants, Solana, Carrero and Manzo.
In the affidavit upon which the attachment is served the damages of the plaintiff are sought in the amount of
Within the authorities the plaintiff has not shown with sufficient detail either the character of the service rendered or its value, in order to justify the granting of the warrant of attachment. In Southwell v. Kingsland (85 App. Div. 384) it is held that “ the mere expression of plaintiff’s opinion as to value, without corroboration, or any details as to the nature or extent of the labor and services performed, is insufficient.” In Calmon Asbestos & Rubber Works v. Asbest-Und-Gummiwerke (141 App. Div. 198) it is held that the moving papers on an application for an attachment must state evidentiary facts from which the judge may conclude that one of the causes of action specified in section 635 of the Code of Civil Procedure exists. Mere conclusions of fact appropriate to a pleading do not suffice. In Wolfsohn Bros. Co. v. Lanzit (141 App. Div. 420) it is held that on an application for an attachment the moving affidavit must state facts from which the amount of plaintiff’s damages can be estimated. In Delafield v. Armsby Company (62 App. Div. 262) the opinion in part reads: “In an action upon a contract for the payment of a sum certain, it appears from the contract itself what the damages will be; but where the damages are unliquidated it is necessary for the plaintiff in his affidavit to set out the evidence which he claims proves his damages in order that the court may judge as to whether he has evidence of damage, and that his allegation of damage is not mere matter of speculation.” (See, also, Haskell v. Osborn, 33 App. Div. 127.) Within these rules we are of opinion that neither in the complaint nor in the affidavits are stated sufficient facts from which the court can properly estimate the extent or value of the plaintiff’s services, and for lack of allegation of sufficient facts upon which the court itself can judge of the extent and value thereof the attachment was improperly granted.
But the greater difficulty for the plaintiff lies in the nature of the cause of action stated. The contract, which has been heretofore set forth, is stated in the complaint as the agree
The order denying the motion to vacate the attachment
Dowling, Laughlin, Page and Merrell, JJ., concurred.
Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.