California Packing Corp. v. Kelly Storage & Distributing Co., 126 N.E. 269

California Packing Corp. v. Kelly Storage & Distributing Co.

126 N.E. 269 | NY | 1920

This is an appeal, on certified questions, from an order of the Appellate Division, reversing an order made by the Special Term denying a motion made under section 682, Code of Civil Procedure, by a third party to vacate an attachment. The Appellate Division vacated the attachment. The material question is whether an allegation in the complaint that a draft, not alleged to be negotiable, was drawn upon defendant by plaintiff, and "for a valuable consideration" duly accepted by defendant, sufficiently states a cause of action for breach of contract under section 636, Code of Civil Procedure.

The Appellate Division in the first department has repeatedly held that an allegation in a pleading that a contract was made "for a valuable consideration" is a mere conclusion of law and that the particular consideration must be pleaded. (Fulton v.Varney, 117 App. Div. 572, 575; Neukirch v. McHugh,165 App. Div. 406, 409.) The Appellate Division in the third department, on the contrary, has held (St. Lawrence Co. Nat.Bank of Canton v. Watkins, 153 App. Div. 551, 553) that a more particular allegation of consideration is unnecessary to make a good pleading.

We are of the opinion that the allegation is sufficient, as "a plain and concise statement" of the ultimate, principal and issuable fact of consideration, to permit the proof of the facts showing the actual consideration. (Sultan of Turkey v.Tiryakian, 213 N.Y. 429.) The Code of Civil Procedure (§ 519) provides that "the allegations of a pleading must be liberally construed, with a view to substantial justice between the parties." In an action on a non-negotiable note it has been held that the words "for value received" make a good averment. *53 (Prindle v. Caruthers, 15 N.Y. 425.) That was the common-law form, and at common law facts were pleaded according to their legal effect. These words have a tested efficiency under the Code. The pleader may depend more safely upon a form stabilized by authority than upon his own ingenuity in stating the particular facts in such case. "A very broad and general allegation of consideration" is sufficient. (National Citizens'Bank of N.Y. v. Toplitz, 178 N.Y. 464, 468.) In pleading on negotiable instruments, by copy, it is unnecessary to allege a consideration, for "every negotiable instrument is deemed primafacie to have been issued for a valuable consideration." (Negotiable Instruments Law [Cons. Laws, ch. 38], § 50.) Words which are the equivalent of the presumption should, in actions on non-negotiable instruments, such as drafts, be sufficient. "For a valuable consideration" in legal significance, means "for an equivalent or compensation having value" or "for value received."

The complaint and affidavit gave jurisdiction to the justice who granted the warrant. They show the existence, first, of a cause of action on contract upon which an attachment could be founded, and secondly, of liquidated damages.

Even in an action for unliquidated damages where evidentiary facts must be stated with some degree of particularity to show a liability of the defendant for the amount stated, in order that the court may say, prima facie, that more than nominal damages have been sustained, complaints and affidavits, general in their terms and open to criticism on the ground that facts are loosely stated, have been upheld on applications to vacate, made, not by the defendants, but by other attaching creditors, where it could be fairly said that the allegations of fact were not "vague and inconclusive." The only question is whether the affidavits conferred jurisdiction to grant the warrant. (Steuben Co. Bank v. *54 Alberger, 78 N.Y. 252, 258; Haebler v. Bernharth, 115 N.Y. 459,464, 465.) Meticulous particularity in pleading the facts which must be shown by way of evidence to establish a cause of action is neither necessary nor proper. It bewilders the real issue and furnishes no safeguard against imposition or oppression.

The order of the Appellate Division should reversed, with costs in this court and in the Appellate Division, the order of the Special Term affirmed, and the questions certified answered as follows: The first and third questions in the affirmative; the second question as follows: The allegation is one of fact and does not state a conclusion of law.

HISCOCK, Ch. J., CHASE, COLLIN, CARDOZO, CRANE and ANDREWS, JJ., concur.

Order reversed, etc.