Wolfsohn Bros. v. Lanzit — 141 A.D. 420

Majority

p. 420

Wolfsohn Bros. Company, Respondent, v. Joseph J. Lanzit and Chicago Oyster Pail Company, Appellants.

First Department,

December 2, 1910.

Headnote

Attachment — affidavits — allegations showing amount of damages.

On an application for an attachment the moving affidavit must state facts from which the amount of plaintiffs damages can be estimated,

Appeal by the. defendants, Joseph . J. Lanzit and another, from an order of the "Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 1st day of November, 1910, denying the defendants’ motion to vacate an attachment.

Cliartes TrosJe, for the appellants;

George L. Lewis, for the respondent.

The proofs of non-residence are sufficient, and the complaint, being composed of allegations sworn to as of his own knowledge by William II. Wolfsohn, may be treated as an affidavit. The difficulty is, however, that the complaint states no cause of action, or, if one can be spelled out, no facts are stated upon which an estimate can be made of plaintiff’s damages.

From some portions of. the complaint it would appear that plaintiff sues for a breach of warranty, but the damages in that case would be the difference between the value of the article as warranted and the actual value of the goods as delivered (Isaacs v. Wanamaker, 189 N. Y. 122 ), and the latter is not -stated. There are also allegations suggesting that plaintiff may have a cause of

p. 421

action in conversion, but here again no value is stated of the converted articles. It follows that the order appealed from must be reversed, with ten dollars costs and disbursements, and the motion granted, with ten dollars costs.

Ingraham, P. J., McLaughlin, Laughlin and Dowling, JJ., concurred.

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

Cases cited

Isaacs v. Wanamaker 189 N. Y. 122 N.Y. 1907-06-14 p. 420