Cunningham v. Von Pustan — 31 N.Y. St. Rep. 255

Majority

p. 255

Walter D. Cunningham et al., Resp’ts, v. Theodore Von Pustan et al., App’lts.

(Supreme Court, General Term, First Department,

Filed March 28, 1890.)

Headnote

1. Attachment—Breach of contract.

The affidavit for an attachment alleged that the claim in suit rested on a sale of certain hides to be shipped to New York at certain prices, and to be of certain weights; that by the contract they were to be paid for while on the high seas, and before plaintiffs coud examine them, and that the hides which arrived were not of the weights as agreed, and were worth much less than those provided for. Held, that the claim was one on which an attachment could issue.

3. Same—Affidavit—Parties.

An attachment will not be set aside on the ground that the caption of the affidavit contained the names .of two defendants not connected with the demand out of which the demand arose.

Appeal from order denying motion to vacate attachment

Oourtlandt V. Anable, for app’lts; G. H. Knox, for resp’ts.

In this action there are apparently seven defendants. The affidavit upon which the attachment was procured alleged the copartnership of the plaintiffs, and that five of the defendants, naming them, and excluding two stated in the caption namely, Carl Von Pustan and Otto Schneider, were also copartners transacting business as such under the firm name of Pustan" & Co. It also alleges that these five persons were indebted to the plaintiffs in the sum named over and above all counterclaims known to the plaintiffs and deponent; and then alleges that the claim rests upon the sale to the plaintiff of certain hides to be shipped from Hong Kong, China, to the port of Hew York, at prices mentioned, and further, that by the contract it was ex-pre sly provided that none of the hides should weigh less than from eight and a half to nine pounds, nor more than fourteen pounds. It also alleges that in accordance with the contract the hides were to be paid for while on the high seas, and before the plaintiffs had an opportunity to examine them; that the hides arrived at the port of Hew York, but were not in accordance with the contract, weighing from six to twenty-seven pounds, and were worth much less than the hides provided for by the contract. There is no doubt that on such a claim as is thus stated an attachment may issue. The question has been so decided expressly. Haebler v. Bernharth, 115 N. Y., 459 ; 26 N. Y. State Rep., 230. But there is some embarrassment occasioned by the appearance of the seven names in the caption of the affidavit on which the attachment was issued. There is no allegation that all these persons were liable on the claim urged. Indeed the proof relates to the five only, who are named for that purpose, and it must be assumed that the two additional were not jointly connected with the transaction out of which the demand urged arose, and who are, therefore, disregarded as unconnected therewith. A multitude of defendants will not authorize a demurrer however too numerous. Code, § 488. The appeal thus considered, the attachment was properly issued and should be sustained. There is no reason apparent why it should be disturbed.

The order appealed from should be affirmed, with ten dollars costs of this appeal and disbursements.

Van Brunt, P. J., and Daniels, J., concur.