Atkins v. Fitzpatrick

This is an application, made upon the affidavits of the defendant and his attorney, and upon the papers on which a warrant or attachment was issued, to vacate the warrant of attachment and all proceedings thereunder. The grounds of the motion, as stated in the affidavits, are that in the papers in which the warrant was issued the plaintiff has failed to state facts sufficient to constitute a cause of action against the defendant; that, even assuming that a cause of action has been sufficiently alleged, it is not one in which a warrant of attachment can issue; and that the plaintiff is himself a nonresident, and cannot invoke the jurisdiction of this court. The warrant was issued upon the affidavit of the plaintiff, alleging substantially the indebtedness of the defendant to him for unpaid commissions earned for procuring work for the defendant in accordance with a contract between them, that an action is about to be commenced by the issuance of summons, and that the defendant is a nonresident. While it is true that the plaintiff has failed to state, his cause of action with that fullness and precision and that directness of statement of fact which would have resolved all doubt, yet, on the other hand, his papers are not so “hopelessly bad,” to use the judicial language of the cases of Guarantee Savings Loan & I. Co. v. Moore, 35 App. Div. 421 , 54 N. Y. Supp. 787 , and Goodyear v. Commercial Fire Insurance Co., 58 App. Div. 611 , 68 N. Y. Supp. 756 , as to require that the attachment be vacated, especially when it is considered that on motions of this character the court will not consider the merits of the action (Furbush v. Nye, 17 App. Div. 326 , 45 N. Y. Supp. 214 ; Romeo v. Garofalo, 25 App. Div. 191 , 49 N. Y. Supp. 114 ; Guarantee Savings Loan & I. Co. v. Moore, supra; Thorn v. Alvord, 32 Misc. Rep. 456 , 66 N. Y. Supp. 587 ), and will not discuss and treat the sufficiency of the complaint with the same elaboration as when the question of its sufficiency is presented on demurrer (Goldmark v. Magnolia Metal Co., 28 App. Div. 271 , 51 N. Y. Supp. 68 ; Jones v. Hygienic Soap Granulator Co., 110 App. Div, 334 , 97 N. Y. Supp. 104 ). With respect to the nature of the cause of action, it is true that the plaintiff’s moving affidavit states-that his action is one “brought to recover money due under a contract,” but an examination of the allegations of that affidavit discloses that, notwithstanding his characterization, the action is really one to recover damages for the defendant’s breach of contract, and therefore one in which an attachment can issue, and he has so expressly alleged in the additional affidavit which he has submitted in opposition to this motion,' pursuant to the authority of section 683 of the Code. Sulzbacher v. Cawthra Co., 14 Misc. Rep. 545 , 36 N. Y. Supp.

With respect to plaintiff’s damages, there is some confusion caused by the designation of a contract in one affidavit as the “Morgan House” and in another as the “Malting House” by the statement in one affidavit that the commissions are due and another that they are not due on the “Overbrook House” contract, and by the allegation in the original affidavit that all of the commissions on the contract price of the work on public school No. 51 are not yet due; but, in his additional affidavit, the plaintiff corrected his statement concerning the commissions on the “Overbrook House” contract, it shows that, even after the defendant is credited with the amount of the unpaid commissions on that contract, there is still a balance due him of an amount within a few dollars of the amount of the warrant, and the value of public school No. 51 contract and the amount of the commissions thereon are too small to materially affect, though they might somewhat lessen, the indebtedness of the defendant to the plaintiff. In his original affidavit, supplemented by that submitted • in opposition to this motion, the plaintiff shows. the contract price of the respective contracts secured by him for the defendant, states the percentage, and

Answering the contention of the defendant that the court has not jurisdiction because both plaintiff and defendant are nonresidents, it appears that the action is on a contract made between the plaintiff and the defendant in the state of New York, and that the summons in the action has been served upon the defendant. It has been held that the rule that the courts of the state will not take jurisdiction of actions between parties residents of and located in another state does not apply, and has never been applied, to actions on contracts; that courts of this state will take jurisdiction of actions for breach of contract although the parties may reside in another state, especially where the contract is made in this state (Smith v. Crocker, 14 App. Div. 245 , 43 N. Y. Supp. 427 ; Furbush v. Nye, 17 App. Div. 326 , 45 N. Y. Supp. 214 ), and in Bridges v. Wade, 110 App. Div. 107 , 97 N. Y. Supp. 156 , citing Wertheim v. Clergue, 53 App. Div. 122 , 65 N. Y. Supp. 750 , the court used the following language:

“To state It differently, the matter now presented is whether the plaintiffs, nonresidents, are entitled to an attachment in an action on contract against another nonresident in the courts of this state. The suggestion of the counsel for the appellant, that our courts will not exercise jurisdiction in a case brought by one nonresident against another nonresident, even where the defendant has been personally served with the summons within this state, does not apply to actions on contract.”

For these reasons, the motion to vacate the attachment and the proceedings thereunder must be denied, with costs.

Settle order on notice.