58 A.D. 432 | N.Y. App. Div. | 1901
Lead Opinion
A warrant of attachment was granted in this action against the defendant, a foreign corporation, upon the verified complaint and an affidavit of one of the plaintiffs. A motion to vacate the warrant was made upon the ground (first) that “ no sufficient cause of action for which an attachment can issue is shown to exist by the papers whereon said warrant was granted; (second) that the papers upon which the warrant was granted do not snow that the plaintiffs are entitled to recover the sum stated therein, over and above all counterclaims known to them.” It appeared that the cause of action sued on was to recover for the breach of a contract whereby the defendant sold and agreed to deliver to the plaintiffs 28,000
I do not think that the question of the plaintiffs’ cause of action should be disposed of upon this motion. A contract is alleged, a breach, and that the plaintiffs sustained damage of a sum named, and the basis upon which this specific sum is estimated is alleged to be the difference between the contract price and the price at which the goods had been actually sold for future delivery by the plaintiffs. The question as to whether the plaintiffs can recover such damage is
The order appealed from .should be reversed, with ten dollars; costs and disbursements, and the motion to vacate the attachment; denied, with ten dollars costs.
Patterson and McLaughlin, JJ., concurred; Van Brunt, P. J.,„ and O’Brien, J., dissented.
Dissenting Opinion
I dissent from the conclusion arrived at in the prevailing opinion.. It has always, up to this time, been the rule of the court in actions-where the damages are unliquidated to require, before the grántingof an attachment, that evidence shall be placed before it which shall show with reasonable certainty that the damages claimed to-have been suffered will be recovered in the action. This rule, however, seems to be ignored in the prevailing opinion, and an attachment is allowed for a large sum of money where there is no evidence-before the court that the plaintiffs have suffered anything but nominaPdamügeV--'-"-They seek to recover the difference betwéen the price-
There are no allegations whatever contained in the affidavits and complaint in this case which in any degree show that any damage has been suffered by the plaintiffs in view of the rule above laid down. There is no allegation that the plaintiffs could not have purchased this salmon in the market for the purposes of delivery, or that the salmon did not have a well-established price at the place of delivery. In the case of Thorington v. Merrick (101 N. Y. 5) it was expressly held that the court was required to vacate an attachment because the facts stated in the affidavit failed to show that the plaintiffs were entitled to recover the sum named.
It might, however, be observed that the complaint and affidavit are defective in that they nowhere contain any statement as to when this salmon was to be delivered under the contract between the plaintiffs and the defendant.
It seems to me that it is .establishing a most dangerous rule to issue attachments in actions for unliquidated damages where there is no legal evidence whatever that a single cent of damage has been suffered.
O’Brien, J., concurred.
Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.