Murphy v. Lindstedt — 142 A.D. 777

Majority

p. 777

Joseph W. Murphy, Respondent, v. William E. Lindstedt, Jr., Appellant.

First Department,

February 10, 1911.

Headnote

Attachment—nature of action— complaint for equitable relief.

A failure to state or a mistake in reciting the nature of a cause of action dpes not vitiate a warrant of attachment.

Where, however, plaintiff alleges that his assignor, a- real estate broker, employed the defendant, at a salary of §15 a week and ten per cent of all commissions earned on sales effected by him; that the latter made a sale to C. on which lie was to be paid a commission of §1,500 by C.; that he thereupon left the employ of plaintiff’s assignor, concealing the customer’s name and brought suit against C. in which he recovered a judgment for §1,500 and that C. is about to pay the judgment, the plaintiff is not entitled to a warrant of attachment, as he has not shown that one of the causes of aption specified in section 635 of the Code of Civil Procedure exists against the defendant".

Appeal by the defendant, William E. Lindstedt, Ji\, 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 19th day of January, 1911, denying the defendant’s motion to vacate an attachment for insufficiency of the papers upon which it was granted.

Charles S. Mackenzie, for the appellant.

Garvan & Armstrong, for the respondent.

The question on this appeal is whether the plaintiff showed, as required by section 636 of the Code of Civil Procedure, that one of

p. 778

the causes of action, specified in section 635 of the Code of Civil Procedure, existed against the defendant.

The plaintiff has characterized his action as one for breach of contract. He now asserts, however, that sufficient facts are shown to make out a cause of action for breach of contract, wrongful conversion of personal property or injury to property. . A failure, to state, or a mistake in recititig, the nature of the cause of action does not vitiate a warrant of attachment. (Fox v. Mays, 46 App. Div. 1 .). If, therefore, the plaintiff states sufficient facts to constitute either of the causes of action specified, the warrant may be .sustained. ...

In brief, the plaintiff says that his assignor, a real estate broker, employed the defendant at a salary of fifteen dollars a week and ten per cent of all commissions earned by sales effected by the defendant; that the latter made a sale to one Coombes and by the terms of the agreement was to be paid a commission of $1,500 by Coombes; that the defendant thereupon, left the employ of the plaintiff’s assignor, concealing the name of said customer, and brought a suit against Coombes, in which he recovered a judgment for $1,500, .and that Coombes is about to pay the judgment.

A cause of action for money had and received is not stated as the judgment has not been paid. ' It was. not a breach of contract for the defendant to leave the employment of the plaintiff’s assignor, as no definite term had been agreed upon. But even if it was a breach of contract, no damages are shown. Such breach of contract did not entitle plaintiff’s assignor to recover from the defendant the $1,500 which Coombes had agreed to pay as commission.

It was said by the learned justice at Special Term that the failure of the defendant to inform his employer of the agreement with Coombes was a breach of duty amounting to fraud, which prevented his employer from receiving the commission due and, therefore, was an injury to property. Ho doubt it was a breach' of duty, on the part of the defendant, to conceal the name, of his customer, but that alone did not give his employer a cause of action against him for the commission. As.a matter of fact, the customer has not yet paid the commission. The mere fact that the defendant has a judgment for it does not entitle the plaintiff to recover of him the amount of' the judgment. It is quite obvious that the plaintiff is

p. 779

seeking by an attachment to enjoin the collection of the judgment. But equitable remedies, if the plaintiff have any, should he pursued in a different way.

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

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

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