p. 783(Supreme Court, Special Term, New York County.Headnote
Attachm en t t-V acatin g.An attachment granted on the affidavit of plaintiff in an action for breach of contract, wherein he claims too much by asserting the wrong measure of damages, will be set aside.
Action by Charles S. Smith against Henry A. Swenson. Motion by ■defendant to vacate a warrant of attachment.
C. H. Knox, for the motion.
E. K. Van Beuren, opposed.
This is a motion to vacate a warrant of attachment, granted under the provisions of sections 635 and 636 of the Code, in an action for breach of contract, on the ground of the nonresidence of the defendant. In the order to show cause why the attachment should not be vacated several reasons are assigned, only one of which, however, is valid. The attachment was granted on the affidavit of the plaintiff, which bases the cause of action upon the fact that the defendant agreed to sell to plaintiff some granite at certain prices, and that, relying upon said agreement, plaintiff contracted to sell the granite to a third party, for a larger sum; that defendant failed to carry out his contract, and plaintiff thereby lost the expected profit; and plaintiff claims to be “damaged in the sum of $663.52, with interest from June 15, 1898, that being the amount of my profit -on all of the said' orders, less the proper deduction for the granite
p. 784posts which were delivered; no part of which sum of $663.52 has been paid.” This was not the proper measure of damage, as plaintiff was only entitled to recover in the action the difference between the contract price of the goods, as agreed upon between plaintiff and defendant, and the market value at the time and place of delivery of the granite. If plaintiff could have bought the goods at the same price as, or a less price than, that agreed upon with defendant, and thus filled his contract with the third party, it is clear that he was not damaged in the amount claimed. In the case of Golden Gate Co. v. Jackson, 14 Abb. N. C. 323 , Mr. Justice Barrett, sitting at special term, held that, to sustain an attachment in an action on contract, the specific sum due must be established by proof, not merely averred; and hence if plaintiff, by adopting the wrong measure of damages, claims too much, the attachment must be set aside. The motion must be granted, and the attachment vacated, with leave to plaintiff to make another application on different papers. No costs.
Motion granted, and attachment vacated, with leave to plaintiff to make another application on different papers. No costs.