Marinette Iron-Works Co. v. Reddaway

Headnote

Attachment—Insufficient Affidavit.

An affidavit for an attachment, under Code Civil Proc. N. Y. § 636, alleged that plaintiff gave defendant a “stock order” for certain belting, and kept a certain amount on hand “during plaintiff’s agency for the sale of defendant’s goods, ” in consideration whereof defendant, on the termination of the agency, agreed to take back all the stock then on hand, and pay plaintiff the cost thereof; that the agency was duly terminated; that plaintiff had then on hand stock received by him from defendant at a cost of $2,812, which sum defendant had refused to pay plaintiff after demand made therefor; that said amount was due over and above all counterclaims ; and that defendant was a non-resident. Held, that the affidavit was too uncertain to sustain the attachment.

Appeal from special term.

Action by the Marinette Iron-Works Company against Frank Beddaway. An attachment was issued against the property of plaintiff upon the following affidavit:

“Austin Cruver, being duly sworn, says: I am the president of the Marinette Iron-Works Company of Chicago. On the 6th of September, 1888, the plaintiff, said company, a corporation duly organized under the laws of the state of Wisconsin, entered into a contract in writing with the defendants, doing business under the name of • F. Beddaway & Company,’ whereby, among other things, it was agreed that the plaintiff should give defendant a stock order for the Beddaway belting, of not less than five thousand dollars, and to keep at least a stock of three thousand dollars’ worth on hand during plaintiff’s agency for the sale of defendant’s goods, which order plaintiff gave, and which stock plaintiff kept on hand. In consideration thereof, among other things, defendant agreed, on the termination of such agency, to take back all the stock of belting except lengths under one hundred feet, and all the hose in good condition, and pay the plaintiff the cost thereof. Said agency was duly terminated on the seventh day February, 1890, and plaintiff had then on hand, and now has, of the stock of belting, in lengths not under one hundred feet, and hose in good condition, received from defendant under said contract, at a cost to plaintiff, advanced and paid to defendant by it, the sum of two thousand eight hundred and twelve 10-100 dollars, which sum

plaintiff has duly demanded of defendants, with the tender of said stock on hand. Defendant has wholly neglected and refused to pay such sum, or any part thereof. That the said sum of two thousand eight hundred and twelve 10-100 dollars, with interest from the termination of said agency, is due over and above all counter-claims known to plaintiff or deponent. My knowledge of the facts is derived from the original contract, accounts with defendant, and stock on hand. The defendant is a non-resident of the state of New York. He resides in England. Austin Cruver.”

The attachment was vacated, on the following opinion of Judge Dugro: “The affidavit, in order to sustain the attachment, requires unnecessary inferences. The plaintiff should show, by proof, the matters set forth in section 636. He has left too much to be guessed. The attachment is vacated. ” From the order vacating the attachment the plaintiff appeals.