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Frusher v. Vacuum Dyeing Machine Co.

131 N.Y.S. 994 Court N.Y. App. Div. Decision date 1911-12-01 English

Delivered by MILLER, J.

Contents

Majority

p. 994
FRUSHER v. VACUUM DYEING MACH. CO.
(Supreme Court, Appellate Division, First Department.
December 1, 1911.)

Headnote

1. Appeal and Erbor (§ 635*)—Record—Attachment.
Right to be heard on an appeal from a mop on refusing to vacate an attachment is not defeated because the warrant of attachment is not made a part of the papers on appeal, if the attacji is confined to the sufficiency of the papers upon which the warrant yas granted.
[Ed. Note.—For other cases, see Appeal and Error, Dec. Dig. § 635.[1] ]
2. Attachment (§ 107*)—Affidavit—Sufficiency—Statement of Amount Due.
An affidavit for attachment is insufficient, vt from which the court can determine the amp here it fails to state facts mt due; and a statement
p. 995
by one suing under a contract for commissions, depending as to amount upon the kind of machines sold, claiming a lump sum due for selling a specified number of machines, without showing the kinds of machines sold, is bad.
[Ed. Note.—For other eases, see Attachment, Cent. Dig. §§ 285-289; Dec. Dig. § 107.[1] ]
Appeal from Special Term, New York County.
Action by Tom Frusher against the Vacuum Dyeing Machine Company. From an order refusing to vacate an attachment, defendant appeals. Reversed, and motion granted.
Argued before INGRAHAM-, P. J., and FAUGHFIN, SCOTT, MILLER, and DOWLING, JJ.
Charles Trosk, for appellant.
George R. Bristol, for respondent.

[1, 2] The warrant of attachment is not a part of the papers on appeal; but, as the attack is confined solely to the sufficiency of the papers upon which it was granted, we do not deem the omission fatal to the appellant’s right to be heard. The plaintiff .was employed by the defendant as selling agent for certain vacuum dyeing machines, manufactured by the defendant, under an agreement pursuant to which he was to receive $150 commission for each large machine sold for $1,475, and $100 commission for each small machine sold for $950. In his affidavit to obtain the warrant of attachment, he states that he sold, and the defendant was paid for, 68 machines, upon which he “was duly entitled as commissions under said contract to the sum of $10,150”; that he became entitled under the contract to the further sum of $332.37 for expenses, making a total of $10,482.37, and that there was paid to him “upon said amount, only the sum of $8,100.” It is impossible for the court to determine, unless the plaintiff’s conclusion be accepted, that he is entitled to anything in excess of the sum already paid him. The failure to state the number of large and the number of small machines sold was doubtless an oversight; but it was a fatal omission, as facts must be stated from which the court can judicially determine the amount due, and the conclusions of the party moving for the attachment canndt be accepted as proof.

The order must be reversed, with $10 costs and disbursements, and the motion granted, with $10 costs. All concur.