Roome v. Jennings — 19 N.Y.S. 825

Majority

p. 825

Roome et al. v. Jennings et al.

(Superior Court of New York City,

General Term.

July 5, 1892.)

Headnote

Attachment—Injuries to Personal Property—Breach of Trust. '

Plaintiffs, tea merchants, employed defendants, tea brokers, to sell a quantity of teas for them; and defendants reported a sale, which plaintiffs accepted, but after-wards repudiated on the ground that defendants were themselves the purchasers of the tea. The market having fallen in the mean while, plaintiffs sustained a loss of $7,500. The tea remained all the time in plaintiffs’ possession. ECeld, that the loss sustained was not an “injury to personal property in consequence of fraud, ” within Code Civil Proc. § 635, entitling plaintiffs to an attachment in such case.

Appeal from special term.

Action by William P. Roome and others against Frederick C. Jennings and William Butterfield. Plaintiffs obtained an attachment on the ground of injury to personal property, alleging in their affidavit that they had employed •deJEendants as brokers to sell for them several thousand half chests of tea; that defendants reported a sale to plaintiffs, and falsely stated that they, defendants, were not interested therein except as brokers; and that plaintiffs, on discovering the fraud, rescinded the contract of sale, and had not been since able to sell the tea, except at a greatly reduced price, in consequence of which they sustained damage to the extent of $7,500. From an order vacating the -attachment, plaintiffs appeal.

Affirmed.

The opinion of McAdam, J., at special term, was as follows: “The attachment was obtained on the ground of * an injury to personal property in •consequence of fraud,’ (Code, § 635, subd. 3,) a term which is defined to mean an act whereby ‘ the estate of another is lessened, other than a personal injury or breach of contract,’ (Code, § 3343, subd. 10.) The defendants never -obtained possession of the plaintiffs’ property, as in Whitney v. Hirsch, 39 Hun, 325 , did no actual injury to it, but made a contract to purchase the property, which contract the plaintiffs rescinded because they discovered that the defendants, who assumed to act as brokers, were in fact acting as principals. The market fell, and the plaintiffs insist that they lost in consequence -$7,500. The defendants may be liable for breach of duty, and the difference

p. 826

in value may be the measure of recovery, but it does not follow that they injured the plaintiffs’ property within the legal meaning of that term. See Tracy v. Leland, 2 Sandf. 730 , 3 Code, R. 47; Railway Co. v. Carpentier, 13 How. Pr. 222 . The defendants did nothing to lessen the estate of the plaintiffs, which remains as before; and it was not affected, except as to value, —a thing controlled entirely by the fluctuations of the market, which at times rises and falls. The word 1 injury,’ as used in the Code, is not so elastic as to yield to such a changeable construction, but upon something which takes away the property, deprives the owner of its possession, or inflicts some lasting injury upon it by direct means. The motion to vacate the attachment must be granted, with $10 costs. ”

Argued before Freedman, Dugro, and Gildeesleeve, JJ.

F. A. Thompson, for appellants. Putney & Bishop, (James L. Bishop, of counsel,) for respondents.

The order appealed from is affirmed, with $10 costs and disbursements, on the opinion of the court below.

Cases cited

Northern Railway of France v. Carpentier 13 How. Pr. 222 N.Y. Sup. Ct. p. 826