Majority
p. 385(89 Hun, 486.) SHANKS v. MAGNOLIA METAL CO. (Supreme Court, General Term, First Department. October 18, 1895.)
Headnote
Attachment—Against Foreign Corporation—Affidavit.Statements in the moving papers that defendant “held and holds itself out to be a foreign corporation,” and that it “is or holds itself out to be a foreign corporation,” are not sufficient allegations that defendant is a foreign corporation (Code Civ. Proc. § 636) to authorize the granting of an attachment on that ground.
Appeal from special term, New York county.
Action by James Shanks against the Magnolia Metal Company. From an order denying a motion to vacate an attachment, defendant appeals. Reversed.
The attachment was granted on the complaint and affidavits made by plaintiff and one Henry L. Miller, of which the following are copies, respectively:
“The plaintiff, for his complaint, alleges, upon his information and belief: First. For a first cause of action: That, at all the time herein stated, defendant was an association or combination of persons, and held and holds itself out to be a foreign corporation, created under the laws of West Virginia. Second. That in consideration of certain services which one Henry L. Miller promised, undertook, and agreed to render to said defendant, said defendant agreed to accept and receive such services, and to pay him therefor one hundred (100) dollars per week, during all of the year 1895; that defendant wrongfully broke said agreement, and terminated the same, and refused to allow said Miller to render such services, or to pay him therefor, from and after May 20, 1895; that said Miller was ready and willing and offered to perform such services, but defendant hindered and refused to permit him to do so; that thereafter said Miller diligently sought opportunity to render other services elsewhere, to reduce the damages sustained by him by reason of defendant’s breach of conti act, but was unable to do so, and he sustained damages, by reason of the premises, in the sum of three thousand dollars. That thereafter, and before the commencement of this action, said Miller, for value, assigned to plaintiff his claim and cause of action arising by reason of the premises, to plaintiff, and plaintiff is the holder thereof. Second. For a second cause of action: That the facts' stated in the first clause or paragraph of the complaint is true; that the defendant undertook, promisee), and agreed to pay to Henry L. Miller, for sales of merchandise which he should effect at the request of defendant, or its managers or agents, ten per cent, of the amount thereof; that, in consideration of promise and agreement, said Henry L. Miller made sales of such merchandise for or at the request of defendant, or its managers or agents, between October 1, 1891, and January 1, 1893, to the amount of $46,-000, or upwards, over and above all sums upon which or for which defendant made payment to said Miller pursuant to said agreement, upon which, said sales there became due and owing from defendant to said Henry L._ Miller forty-six hundred dollars, and the same, with interest thereon from January 1, 1893, is still justly due and owing from defendant; that thereafter, and before the commencement of this action, said Henry L. Miller, for value, assigned his claims, demand, and cause of action by reason of the premises to plaintiff, and plaintiff is the holder thereof. Wherefore plaintiff demands judgment against the defendant for seven thousand six hundred dollars, with interest on $4,600, parcel thereof from January 1,1893, and on the balance thereof from May 20, 1895, together with the costs, etc., in this action.”
“James Shanks, being duly sworn, deposes and says: I am the plaintiff. I have a cause of action against the above-named defendant, which is, o;r
p. 386Argued before VAN BRUNT, P. J., and PARKER, J.
holds itself out to be, a foreign corporation, which claim arises out of contract other than a contract to marry, and the amount of which said claim is $7,600. 00-100 over and above all counterclaim, and all offsets known to me. The claim arises out of the facts set forth in the complaint herein, and of the affidavit of Henry L. Miller hereto annexed, to each of which I ask leave to refer.”
“Henry L. Miller, being duly sworn, deposes and says: X have read the complaint herein. I am the person therein referred to, named Henry L. Miller, and the facts set forth in the complaint are true. For several years prior to January 1, 1895, I had rendered, and was then rendering, services for defendant, at its request. For certain services, defendant agreed that I should receive and draw $5,200 per annum, from the beginning of each year, in equal weekly payments of one hundred dollars each, and I received and drew the same accordingly until after January 1, 1895; and said arrangement and agreement was continued in force for the year 1895, without modification. On or about May 20, 1895, defendant violated said agreement, refused to make further payments, or to allow said employment to be continued, without cause, although I was ready and willing and offered to continue therein, and have since sought to obtain other employment, but failed to do so. Prior to 1893, for certain services which I rendered for defendant at its request, defendant agreed that X should receive ten per cent, on all sales which I procured at the request of defendant, its managers or agents. Between October 1, 1891, and January 1, 1898, when said arrangement and agreement ceased, I procured and caused sales of merchandise for or at the request of defendant and of its authorized managers, or agents or members, of the amount of at least $46,000 over and above all sums upon which commissions or the ten per cent, allowance above referred to has been paid, and ten per cent, upon said amount of $4,600, with interest, is. justly due from defendant by reason of the premises. As against said several demands herein and in said complaint set forth, there are no counterclaims nor offsets, and the same are justly due and owing from defendant, over and above all counterclaims and all offsets known to me.”
A. S. Bacon, for appellant.
L. A. Gould, for respondent.
We are of opinion that there was no sufficient allegation of the fact that the defendant was a corporation. The allegation in the alternative is not sufficient to satisfy the requirements of the Code,[1] which authorizes the issuing of an attachment, in certain cases, where the defendant is a foreign corporation. If the plaintiff is not willing to make his allegation in a definite form when he proceeds against a foreign corporation, he cannot procure the benefits of the statute given him, as against foreign corporations. The order should be reversed, with $10 costs and disbursements, and the motion granted, with $10 costs.
1 Section 636.