| N.Y. App. Div. | Dec 1, 1911
The warrant of attachment is not a part of the papers on appeal. But as the attack is confined solely to the sufficiency of the papers upon which it was granted, we do not deem the omission fatal to the appellant’s right to be heard. The plaintiff was employed by the defendant as selling agent for certain vacuum dyeing machines, manufactured by the defendant, under an agreement pursuant to which he was to receive $150 commission for each large machine sold for $1,475, and $100 commission for each small machine sold for $950. In his affidavit to obtain the warrant of attachment, he states that he sold, and the defendant was paid for, sixty-eight machines, upon which he “ was duly'entitled as commissions under said contract to the sum of $10,150; ” that he became entitled under the contract to the further sum of $332.37 for expenses, making a total of $10,482.37, and that there was paid to him “upon said amount, only the sum of $8,100.” It is impossible for the court to determine, unless the plaintiff’s conclusion be accepted, that he is entitled to anything in excess of the sum already paid him. The failure to state the number of large and the number of small machines sold was doubtless an oversight, but it was a fatal omission, as facts must be stated from which the court can judicially determine the amount due, and the conclusions of the party, moving for the attachment, cannot be accepted, as proof.
Ingraham, P. J., Laughlin, Scott and Dowling, JJ., concurred.
Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.