Duryea, Watts & Co. v. Rayner — 65 N.Y. St. Rep. 429

Majority

p. 429

Duryea, Watts & Company, Limited, Resp’t, v. Julius Rayner, App’lt.

(New York Common Pleas, General Term,

Filed February 4, 1895).

Headnote

1 Appeal—Appealable order.

An appeal lies to the common pleas from an order of the city court, affirming an order denying a motion to vacate an attachment, where no question of discretion is involved, and the legal sufficiency of the papers, upon which the attachment was procured, is alone in dispute.

2. Pleading—Complaint—Verification.

The verification of a complaint, in the usual form required in the case of a verification made by a party, is sufficient when made by an officer of a domestic corporation.

3. Attachment—Affidavit—Proof of damages.

Por the purpose of presenting the jurisdictional facts as required by § 636 of the Code, an allegation of unliquidated damages for the breach of a contract, such as would suffice for a complaint, cannot avail, where it is not further made to appear that damages beyond those of a nominal nature were necessarily sustained.

Appeal from an order of the city court, affirming an order denying a motion to vacate an attachment on the papers on which it was granted.

Robert L. Wensley, for app’lt; L. B. Bunnell, for resp’t.

An appeal lies to this court from an order such as that before us, where it appears that no question of discretion is involved, and the legal sufficiency of the papers upon which the attachment was obtained is alone in dispute. Murphy v. Jack, 142 N. Y. 217 ; 58 St. Rep. 458 ; Allen v. Meyer, 73 N. Y. 3 ; Wallace v. Castle, 68 N. Y. 373 ; Walsh v. Schultz, 6 Civ. Proc. R. 126. It is claimed that the verification of the complaint in this case was defective because made by the president of the plaintiff corporation without a statement of the sources of his knowledge regarding the matters in suit. The objection is without force. The verification being in the usual form required in the case of a verification made by a party, it was sufficient as made by the affiant, an officer of a domestic corporation. American Insulator Co. v. Bankers' & M. Telegraph Co., 13 Daly, 200 .

The main objection is made to the matters stated in the complaint leading to the allegation of damage, it being contended that damage was in no way shown to have resulted from the facts alleged, and that, therefore, the plaintiff did not establish the fact that it was “entitled to recover a sum stated.” Code, § 636. It is alleged that the plaintiff sold to the defendant “ six car loads of flour, amounting in the aggregate to twelve hundred und six sacks, _,at and for the price of three and 90-100 dollars per 196 lbs; ” that

p. 430

subsequently plaintiff delivered, and defendant received and paid! for, one car load of 210 sacks. The plaintiff’s readiness and willingness to deliver the remaining five car loads, and the defendant’s refusal to receive the same, is alleged, and resulting damages-in the sum of $525 are claimed. An affidavit was also submitted as required by § 636 of the Code, and the complaint was made a part of the affidavit by reference, but no further facts with regard to the cause of action were alleged. Upon this appeal we have-but to determine whether the facts presented to tire court below tended to show a compliance with tne statutory requirements. If so, the court having acquired jurisdiction to grant the attachment, the appellant would have no standing before this court. Steuben Co. Bank v. Alberger, 78 N. Y. 258 ; National Shoe & Leather Bank v. Mechanics’ Nat. Bank, 89 N. Y. 440 . The complaint definitely sets forth a breach of contract by the defendant, in so far as he refused to receive five car loads of flour, aggregating 996-sacks, and the plaintiff makes a verified statement-as to its damage by reason of the defendant’s failure to receive and pay for them as agreed. . This, however, does not afford proof “ to the satisfaction of the judge,” which satisfaction must be judicial, and not merely personal, Mott v. Lawrence, 17 How. Prac. 559; Dolz v. Transportation Co., 3 Civ. Proc. R. 162, that the plaintiff is “.entitled to recover a sum stated ” (Code, 636). It is true that the elements of a cause of action for breach of contract are here shown, and the fact that the exact method adopted by the plaintiff in computing the damages alleged does not appear, nor the precise causes leading to this damage, would not be of effect upon the question of jurisdiction here presented, if it could be reasonably inferred from the allegations that some damage necessarily resulted. Haebler v. Bernharth, 115 N. Y. 464 ; 26 St. Rep. 330 . But here there is no averment from which such an.inference is to be drawn. For the purpose of presenting the jurisdictional facts as required by the Code, an allegation of unliquidated damages for breach of a contract, such as would suffice for a complaint, cannot avail, where it is not further made to appear that damages beyond those of a nominal nature were necessarily sustained. Westervelt v. Agrumaria Sicula, Societa, etc., 58 Hun, 147 ; 33 St. Rep. 883 . In the proofs here submitted there was nothing to authorize an inference that loss resulted from the defendant’s failure to accept the goods, and, while the complaint was sufficient as a pleading, it was insufficient as evidence of the facts to be set forth as a statutory condition to the granting of the attachment, and the appeal must prevail. Orders of general and special terms reversed, and motion granted, with costs.

All concur.

Cases cited

National Shoe & Leather Bank v. Mechanics' National Bank 89 N. Y. 440 N.Y. 1882-06-20 p. 430