Westervelt v. Agrumaria Sicula Societa Anonima di Transporti Marittimi

Majority

p. 833

William H. Westervelt et al., Resp’ts, v. The Agrumaria Sicula Societa Anonima di Transporti Marittimi, Appl’t.

(Supreme Court, General Term, First Department,

Filed October 24, 1890.)

Headnote

Attachment—Affidavit where damages are unliquidated.

In an affidavit upon which to found an application for an attachment where the damages are unliquidated the facts which the plaintiff claims prove his damages must be set forth, so that the court may judge whether he has evidence of damage and that his allegation of damage is not speculative. A mere allegation that he has sustained damage to a certain amount is not sufficient.

Appeal from order denying motion to vacate attachment.

J. W. McElhinney, for app’lt; F. W. Llinrichs, for resp’ts.

We think that the motion should have been granted. There are no facts set up in the affidavits upon which the attachment was granted from which the court can judge what amount, if any, of damages have been sustained by the plaintiff. In an action upon contract for the payment of a sum certain it appears from the contract itself what the damages will be.

p. 834

In an action, however, for unliquidated damages, it depends upon the facts of the case as to whether the plaintiff has sustained merely nominal or real damage. A cause of action may he completely set forth where only nominal damages can he recovered, and, therefore, in an affidavit upon which to found an application for an attachment where the damages are unliquidated it is necessary for the plaintiff to set out the facts which he claims prove his damages, in order that the court may judge as to whether he has evidence of damage and that his allegation of damage is not mere matter of speculation. The Code requires an affidavit which must show cause of action, and necessarily where the damages are unliquidated show the amount of damage, in order to entitle the party to an attachment. A complaint will not suffice, because it is the office of a complaint to- allege conclusions of fact deduced from evidence; whereas, it is the office of an affidavit to set out the evidence establishing these conclusions of fact. Therefore, although an allegation in the complaint that the plaintiff has. suffered damage by reason of the breach of a contract to the amount of $5,000 may be sufficient, yet in an affidavit such an allegation amounts to nothing, because the evidence from which that conclusion is drawn is not set forth. The court must determine from the evidence placed before it whether a case is made out or not, and it is not for the party to judge for himself, which latter seems to be the opinion in view of the manner in which allegations in affidavits are frequently made.

In the case at bar there is nothing from which the court can adjudge that the plaintiff has sustained a single dollar of damage. He may set out facts showing nominal damages; but no facts are spread upon this record going to show any real substantial injury which the plaintiff has sustained. This allegation that he has been damnified to the extent of $5,000 is nothing but an expression of his opinion, so far as these papers are concerned; and his opinion upon the subject cannot be considered by the court.

We think, therefore, in view of the deficiency of the affidavits in this case, the motion to vacate should have been granted, and the order should be reversed and the attachment vacated, with ten dollars costs of appeal and the disbursements.

Brady and Daniels, JJ., concur.