Majority
p. 313Gerhard Wessels et al., Resp’ts, v. Gustavus Adolphus-Boettcher, App’lt. (Supreme Court, General Term, First Department, Filed May 12, 1893.)
Headnote
Attachment—Affidavit.An affidavit which merely states that plaintiffs shipped merchandise to-defendant and advanced money to him, and that there is an account current between them upon which a certain sum is due, without stating how much merchandise was shipped or its value, or how the sum is arrived at, is insufficient to obtain an attachment, as not showing a cause of action.
Appeal from an order of the special term denying a motion to vacate a warrant of attachment.
The affidavit for the attachment was as follows:
Charles T. Wessels, being duly sworn, doth depose and say that-he is one of the plaintiffs named in the above-entitled action. That-the plaintiffs at the several times hereinafter mentioned were copartners. That the above-named defendant is indebted to the-above-named plaintiffs in the sum of $4,438.09 over and above all counterclaims known to plaintiffs upon the cause of action for breach of express contract other than a contract to marry, and that the grounds for the plaintiffs’ claim are as follows, to-wit: That-plain tiffs are merchants doing business in the city of New York ; that the defendant is a merchant residing in Spanishtown, Jamaica; that plaintiffs have, from time to time, for many years last past, shipped merchandise to the defendant, and advanced money to him, and there is an account current between them ; that on September 15, 1892, there became and was due the plaintiffs from the defendant upon said account current the sum of $4,438.09 over and above all offsets and counterclaims known to the plaintiffs that no part of said sum has been paid, and the amount thereof, with interest from September 15, 1892, is wholly due and unpaid from defendant to plaintiffs, and plaintiffs have a cause of action against the defendant therefor for breach of contract; that plaintiffs are about to commence an action to recover the same; that-the summons is made out, and a copy thereof is hereunto annexed. And this deponent further says that the defendant is not a resident of the state of New York, but is a nonresident thereof, and resides in Spanishtown, Jamaica, British West Indies.
Geo. W. McKenzie and Jason Hinman, for app’lt; Wing, Shoudy & Putnam (Joseph A. Shoudy, of counsel), for resp’ts.
It is necessary, in an affidavit to obtain an attachment, that the plaintiff should set out in such affidavit a. good cause of action, unless a complaint accompanying the summons is made a part thereof, in which complaint a good cause of action is set forth. In the case at bar the cause of action attempted to be set out clearly does not state facts sufficient to constitute a cause of action-. There is no allegation except that of an account current. It is true that the items of such account current are stated to consist of merchandise and money advanced, but how much merchandise, what its value was, or how such value-
p. 314
was arrived at, or upon what basis the plaintiffs claim a recovery, are not even hinted at. Under such circumstances, no recovery can be had upon a cause of action set out in this manner. Therefore, there being before the court no proof of the existence of a cause of action, no attachment should have been issued. The order appealed, from should be reversed, with $10 costs and disbursements, and the attachment vacated, with $10 costs and disbursements.
Van Brunt, P. J., Follett and Barrett, JJ., concur.