Corcoran & Kostelanetz v. Dupuy

15 Misc. 2d 460 | N.Y. Sup. Ct. | 1958

Edgar J. Nathan, Jr., J.

Motion by defendant, Jacques Dupuy, to vacate warrant of attachment and to set aside the service of the summons and complaint by publication is granted.

In this action only the fourth and fifth causes of action involve flus defendant. It is unnecessary to pass upon the arguments in support of the motion respecting the fifth cause of action which is asserted against this defendant and others inasmuch as the Appellate Division has ruled that that cause of action did not justify the issuance of the warrant previously granted as to a codefendant therein (Corcoran & Kostelanetz v. Dupuy, 6 A D 2d 776, 1005). The fourth cause of action is in quantum meruit and is brought against this defendant and others to recover for the reasonable value of legal services rendered by plaintiffs on behalf of the defendants at the latters’ special instance and request. The affidavits in support of the warrant, however, are insufficient since no facts are alleged therein from which the amount of the damages may be reasonably determined. As that cause of action seeks liquidated damages, evidentiary facts must be set forth in the papers to show, with reasonable certainty, the nature of the employment, the services rendered by the plaintiffs and that they have sustained damages to the extent claimed. In the absence of any proof of the extent of the services claimed to have been rendered by plaintiffs and the failure to supply evidentiary details to substantiate the claimed value of the alleged services, the issuance of the warrant was unauthorized (Wesley v. Drake, 240 App. Div. 59; Prentiss v. Greene, 193 App. Div. 672).

The cross motion to sever the fifth cause of action is denied.