Roome v. Jennings — 46 N.Y. St. Rep. 894

Majority

p. 894

William P. Roome et al., App’lts, v. Frederick C. Jennings et al., Resp’ts.

(New York Superior Court, General Term,

Filed July 5, 1892.)

Headnote

Attachment—Injury to personal property.

Defendants contracted to purchase certain personal property Of plaintiffs, but the latter discovering that they were principals in the transaction and not brokers, as they represented, rescinded the contract, and the market fell. Held, that this did not constitute an injury to personal property within the meaning of § 635 of the Code. The word injury as there used means something which takes away the property, deprives the owner of its possession or inflicts some lasting injury upon it by direct means.

Appeal from order of special term, vacating a warrant of attachment

p. 895

The following is the opinion of the special term :

McAdam, J.—The attachment was obtained on the ground of “ an injury to personal property, in consequence of fraud,” Code, § 635, subd. 3, a term which is defined to mean an act whereby “ the estate of another is lessened, other than a personal injury or breach of contract.” Code, § 3343, subd. 10. The defendants never obtained possession of the plaintiffs’ property, as in Whitney v. Hirsch, 39 Hun, 325 , did no actual injury to it, but made a contract to purchase the property, which contract the plaintiffs rescinded because they discovered that the defendants, who assumed to act as brokers, were in fact acting as principals. The market fell, and the plaintiffs insist that they lost in consequence-$7,500. The defendants may be liable for breach of duty, and the difference in value may be the measure of recovery, but it does not follow that they injured the plaintiffs’ property within the legal meaning of that term. See 2 Sandf., 730 ; 3 Code R., 47; 13 How Pr., 222 : 2 Abb. Pr., 259 . The defendants did nothing to lessen the estate of the plaintiffs, which remains as before, and it was not affected, except as to value, a thing controlled entirely by the fluctuations of the market, which at times rises and fails. The word injury, as used in the Code, is not so elastic as to yield to such a changeable construction, but upon something which takes away the property, deprives the owner of its possession or inflicts some lasting injury upon it by direct means. The motion to vacate the attachment must be granted, with ten dollars costs.

James J. Allen (F. A. Thompson, of counsel), for app’lts; Putney & Bishop (James L. Bishop, of counsel), for resp’ts.

The order appealed from is affirmed, with ten dollars costs and disbursements, on the opinion of the court below.

Freedman, Dugro and Gildersleeve, JJ., concur.