Southwell v. Kingsland

83 N.Y.S. 356 | N.Y. App. Div. | 1903

O’Brien, J.:

In form, the action is on a quantum meruit, and it is sought to recover what is alleged to be the reasonable value of certain labor and services which, it is stated, was $19,000. But whether the services were those of a lawyer, or a doctor, or an agent, and whether rendered spasmodically or continuously, does not appear, and, as. shown by the complaint and affidavit, so far as they bear on the value of the services, there are no facts presented to support the value which the plaintiff places upon his labor and services, and there is nothing, therefore, from which the value can be determined ■outside the plaintiff’s own statement. With respect to such statement, it is unnecessary for ús to do more than refer to two cases in this court which we regard as decisive in holding-it insufficient.

In Delafield v. Armsby Go. (62 App. Div. 262), Presiding Justice Van Brunt, writing the opinion, says: “In an action upon a contract for the payment of a sum certain, it appears from the contract itself what the damages will be; but where the damages are unliquidated, it is necessary for the plaintiff in his affidavit to set out the evidence which he claims proves his damages, in order that the court may judge as to whether he has evidence of damage, and that his allegation of damage is not mere- matter of speculation, * * * It should be borne in mind, in considering this proposition, that it is only within a comparatively limited period of time that it has been possible to issue an attachment in an action' to recover unliquidated damages-.1 Hence it is the duty of the court to givó fair construction to the provisions of the Code which properly require,, before a man’s property shall be taken in execution before judgment upon an unliquidated claim, that the papers shall contain evidence that the plaintiff has sustained the damages which he demands.” And in Haskell v. Osborn (33 App. Div. 127) it was said by the. same judge : “ A 'cause of action may be completely set- forth where only nominal damages can be recovered, and, therefore, in an affidavit upon which to found an application for an attachment, where the damages are unliquidated, it is necessary for the plaintiff to set out the facts which he claims prove his damages, in order that the court may judge as to whether he has evidence of damages and that his allegations of damage are not mere matter of speculation.”

The respondent refers to Haebler v. Bernharth (115 N. Y. 459) as a case wherein “ an attachment was sustained upon evidence of much vaguer damage ” than that presented herein, but all that need be said-in reference thereto was stated by Justice Yah Brunt, who, as to that case, said, in National Broadway Bank v. Barker (40 N. Y. St. Repr. 771): “ The only question was whether there was any evidence tending to establish the facts conferring jurisdiction. The question before the General Term upon an appeal from an order vacating or denying a motion to vacate an attachment is, whether there was not only some evidence tending to establish the facts, but sufficient evidence to justify the granting of the writ; the jurisdiction of the two courts upon appeal being essentially different, one-weighing the evidence and the other only seeing whether there is any evidence to support the necessary allegations.”

The rule deducible from these authorities is that contended -for by the appellant, that in an action on contract,, where the damages; are unliquidated, the attachment papers must contain facts from which the court can determine for itself that the amount claimed is proper. The mere expression of. plaintiff’s opinion ■ as to value, without corroboration, or any details as to the nature or extent of the labor and services performed, is insufficient. Upon this ground, the motion to vacate should have been granted.

The order accordingly should be reversed, with ten dollars costs and disbursements, and the motion to vacate granted, with ten dollars costs.

Van Brunt, P. J., Patterson, McLaughlin and Laughlin, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.