Cattaraugus Cutlery Co. v. Case — 30 N.Y. St. Rep. 961

Majority

p. 961

The Cattaraugus Cutlery Co., Resp’t, v. Andy J. Case, App’lt.

(Supreme Court, General Term, Fifth, Department,

Filed April 11, 1890.)

Headnote

Attachment—Affidavit.

The affidavit on which an attachment was granted stated that plaintiff was entitled to recover a certain amount “ as damages for breach of contract,” and that during two or three years plaintiff advanced money to-defendant and had an account with him as an employee; that during said.

p. 962

time the aforesaid sum was paid him over and above the commission on sales, and that said defendant is indebted to plaintiff on said advances to said amount. Held, that the affidavit alone furnished no evidence of a cause of action, but only an allegation or statement of the legal conclusion that such cause of action exists and is insufficient to authorize the issuing of an attachment.

Appeal from an order of Brie special term, denying defendant’s motion to set aside an attachment on the papers on which it was granted.

Inman & Cole, for app’lt; Ansley & Davie, for resp’t.

The weakness of the affidavit upon which this attachment was granted is in the statement of the plaintiff’s cause of action. The affiant states that the plaintiff is entitled, to recover a sum named, “ as damages for breach of contract;” but does not state what the contract was nor in what its breach consisted. He states “ that for and during the last two or three years the said plaintiff has advanced and paid to the defendant money, and has had an account with him as an employee; that during that time the aforesaid sum has been paid to him over and above the commissions on sales; and said defendant now owes and is indebted to the plaintiff on said advances and money paid, to said amount.” This does not seem to add anything to the first general statement of a contract and its breach.

On what account or upon what agreement the moneys were advanced and paid to the defendant is not stated; nor why the employee should be indebted to the employer for money advanced and paid to him is not disclosed. Some features of iRe affidavit, especially the unexplained reference to “ commissions on sales,” suggest the idea that the affidavit was intended to supplement a sworn complaint, which alleged facts constituting a cause of action, and that the latter was for some reason omitted from the papers.

Clearly the affidavit alone furnished no evidence of a cause of action, but only an allegation or statement of the legal conclusion that a cause of action exists. Such an affidavit is insufficient to authorize the issuing of an attachment. Moore v. Becker, 13 N. Y. State Rep., 567; Labalt v. Schulhof, 22 id., 532.

The order appealed from must be reversed and the motion granted, with ten dollars costs and the disbursements of this appeal.

Macomber, J., concurs; Corlett, J., not sitting.