Haebler v. Bernharth — 23 N.Y. St. Rep. 199

Majority

p. 199

Theodore Haebler et al., Pl’ffs and App’lts, v. John G. Bernharth et al., Def’ts and Resp’ts.

(New York Superior Court, General Term,,

Filed April 15, 1889)

Headnote

1. Attachment op non-bbsidbnt's pbopebty tjndeb § 635 op the Code— What plaintifp must show.

The showing which the plaintiff is obliged to make, in order to be entitled to an attachment under section 635 of the Code, is a showing by legal proof. The judge has no right to be satisfied with less. Section 683 of the Code shows this- to have been the intention of the statute. The proof required should be by affidavit, stating facts, not conclusions. If the complaint in the case is relied upon as one of the affidavits upon which the application for the attachment is based, it must nevertheless comply with the requirements of other affidavits as to the manner of stating the facts.

2. Same—What will not be sdppicient.

A mere allegation that by reason of the defendant’s breach of warranty, plaintiffs have been damaged a sum named in the affidavit, is not a showing of the fact by proof—this is simply an allegation of the fact based upon affiant’s conclusion without showing the grounds of his conclusion.

3. Same—When and by whom a motion to vacate may be made.

Where one attachment had been issued upon property of the non-resident defendant, and afterwards the same property was attached by another creditor of the defendant, who subsequently obtained judgment for a greater amount than that for which his attachment was issued, Meld, the said subsequent lienor had a status to make a motion that the first attachment be vacated.

This action was commenced and an attachment issued on April 5, 1888. The sheriff duly levied on a debt due to the defendants from the firm of C. C. Abel & Co., and the sum of $900 was afterwards paid by the said firm to the sheriff.

On May 2, 1888, an action was commenced by Elijah Myers and another against the same defendants, and on the same day an attachment was issued for $l,4/r6.5J, and the sheriff thereupon levied upon the same fund. The said

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subsequent lienors aftei’wards entered judgment for $1,604.57, after a personal appearance by the defendants, and an execution thereon was levied upon the same fund, and at the time the motion was made to vacate the first attachment, that execution was outstanding and unsatisfied.

The motion to vacate the first attachment was made by the said subsequent lienors.

Marshal P. Stafford, for app’lts; Billings & Cardoza for resp’ts.

This is an appeal from an order vacating a warrant of attachment.

The motion to vacate was made upon an affidavit on which the warrant was granted.

The plaintiffs claim that the complaint was also one of the papers presented on the application for the attachment.

The complaint, after alleging the plaintiffs co-partnership, and that of defendants, reads:

“III. That between on or about the 30th day of January, and the 4th day of February, 1888, the plaintiff bought of the defendants one thousand bags of beans to be shipped from France, and on or about the 22d day of March, 1888, the plaintiffs paid the defendants the price agreed therefor.

“ IV. That the defendants warranted and guaranteed that said beans should be of a kind and quality equal to the sample furnished to plaintiffs by defendants at the time of said purchase.

“ V. That the beans delivered to the plaintiffs by the defendants, under said contract, were not of a kind and quality equal to said sample, but were greatly inferior thereto.

“ VI. That by reason of the breach of warranty by the defendants as aforesaid, the plaintiffs were damaged in the sum of $1,064.51.”

Wherefore the plaintiffs demand judgment against the defendants in the sum of $1,064.51, besides cost of this action.

The affidavit is as follows:

“City and County of New York, ss.:

Theodore Haebl'er, being duly sworn, says that he is one of the plaintiffs named in the above entitled action which has been brought to recover the sum of one thousand sixty • four fifty-one one-hundredths dollars, as damages suffered by the plaintiffs by reason of a breach of warranty by the defendants, as to the kind and quality of one thousand bags of beans, purchased and paid for by the plaintiffs, to be shipped by the defendants from Havre, France, under said warranty.

That the defendants are not residents of this state, but reside at Havre, France.

That the plaintiffs are entitled to recover from the defendants, the sum of one thousand sixty-four fifty-one one-hundredths dollars, over and above all counter claims known to deponent.”

p. 201

Assuming that the complaint formed part of the papers used to obtain the warrant of attachment, I cannot see how the plaintiff has shown that one of the causes of action specified in section 635, of the Code of Civil Procedure, exists against the defendants.

The showing which the plaintiff is required to make by section 636, is a showing, by legal proof. The judge has no right to be satisfied by less. Section 683, by the words, “new proof by affidavit on the part of the plaintiff,” is convincing upon this point.

The proof required should be by affidavit stating facts, not conclusions.

The verified complaint, if regarded as an affidavit, must, nevertheless, comply with the requirements of other affidavits as to the manner of stating the facts,

Ho fact is stated in any of the papers which could fairly be considered as proof that the plaintiffs have (assuming a cause of action to be stated) sustained more than nominal damages, and such damages would not sustain the attachment.

It appears upon the face of the affidavits, that by reason of defendants’ breach of warranty, plaintiffs have been damaged in the sum of $1,064.51, but this is not a showing of the fact by proof; this is simply an allegation of the fact which is probably based upon the affiant’s conclusions; if the grounds of the conclusions appeared in the affidavits, there might have been a showing by proof.

The plaintiff’s statement would as well have warranted a claim of $5,000, as one of $1,064.51.

The facts and the affidavit should appear to sustain the claim made upon them, before the plaintiff can be entitled to an attachment. In Smith v. Davis, 29 Hun, 308 , it is held that a plain case must be made out by reasonable and satisfactory proof, and that where it is not, it follows that the attachment must be set aside.

I think that the order of the special term should be affirmed, with ten dollars costs and disbursements.

Sedgwick, Ch. J., and Truax, J., concur.