4 N.Y.S. 819 | N.Y. Sup. Ct. | 1889
To entitle a plaintiff to a warrant of attachment he must show by affidavit, to the satisfaction of the judge granting the warrant, that one of the causes of action specified in section 635 of the Code of Civil Procedure exists against the defendant. We do not think the affidavit upon which the attachment in the present case was granted satisfactorily establishes the existence of such a cause of action. That affidavit is made by the plaintiff himself, who swears “that a cause of action exists against the said defendants for the breach of an express contract in writing made between said plaintiff and said defendants, in the city of Vienna, on the 8th day of August, 1883, whereby the said defendants, in consideration of the sum of two thousand gulden, paid by said plaintiff to said defendants, agreed to pay to said plaintiff the sum of one thousand dollars, and five per centum of all profits made or to be made by them in disposing of the invention of said Josef Schulhof relating to repeating rifles, known as ‘ Schulhof’s invention.’” And the plaintiff further says, in the same affidavit, “ that the said defendants recently sold said invention for the sum of fifty thousand dollars in cash, and reserving to them other profits to a large amount; that his share of the said profits, according to the said agreement, amounts to ten thousand dollars at present, and that plaintiff is entitled to recover of said defendants said sum of ten thousand dollars over and above all counter-claims known to him;” and “that no part thereof has been paid, although the same was duly demanded.” This is all that the plaintiff’s affidavit contains with reference to his alleged cause of action. The express contract in writing is not set forth. As stated by the plaintiff, the undertaking of the defendants was to pay $1,000 and 5 per cent, of all profits made or to be made in disposing of a certain invention. But to pay when? The affidavit is silent as to the time. There is absolutely nothing to indicate the date at which the sum of $1,000 was to be paid. And when were the profits to be payable ? It may perhaps be presumed that they were to be paid over as soon as received by the defendants, but this is a mere matter of inference, and is nowhere stated as a matter of fact. It may or may not be correct. And then there is not even a distinct assertion that the $50,000 for which the invention was sold represented profits in whole or in part. It is only because the plaintiff speaks of the defendants as “ reserving to them other profits to a large amount” that we may infer that the cash proceeds of the sale constituted profits. As to what these other profits were, thus reserved to the defendants, we are told nothing. The plaintiff’s averment that his share of the profits, according to the agreement, amounts to $10,000 at present, is merely the statement of a conclusion, unaccompanied by any disclosure of the
Van Brunt, P. J. concurs.