88 N.Y.S. 507 | N.Y. App. Div. | 1904
This motion was made on the plaintiff’s papers, and the appellant urges that there is in the papers no proper proof of the making of the alleged agreement between the plaintiff and defendant, as required under the provisions of section 636 of the Code of Civil !Procedure* where the action is for a breach of contract. We think
The special damages are equally well pleaded and supported, and the plaintiff ought not to' be deprived of the advantage which he has gained by acting promptly, within the provisions of the statute. If the facts are established on the trial, and they are fully supported by the affidavits, he is entitled to recover, and this recovery ought; not to be embarrassed by releasing the property of the defendant within this State.
The order appealed from .should be affirmed, with ten dollars costs and disbursements.
All concurred ; Bartlett, J., in result.
Order affirmed, with ten dollars costs and disbursements.