Guilhon v. Lindo — 22 N.Y. Super. Ct. 601

Majority

p. 601

Eugene Guilhon et al., Plaintiffs and Respondents, v. Gabriel and Santiago Lindo, Defendants and Appellants.

Headnote

1. The Code of Procedure does not authorize the issue of»aa attachment, as a provisional remedy in an action of an equitable nature, where the amount which the plaintiffs may recover must-be ascertained by an accounting, and the costs are in the discretion of the Court,

2. Thus, where in action for an injunction against the infringement of a trade mark, and for damages, an attachment was issued; Held, that it was improvidently granted, and must be set aside. Such an action is not “ an action for the recovery of money" within the meaning of section 227 of the Code.

(Before all the Justices.)

Heard, April 26, 1862;

decided, May 10, 1862.

In this action, an attachment was issued against the defendant, Santiago Lindo, upon the ground that he had absconded concealed himself to avoid the service of a summons; a motion being made to set aside such attachment, the motion was denied and an appeal is taken from such order.

It was conceded that the facts stated in the affidavit, upon which the attachment was granted, • established the grounds upon which it was issued. The nature of the action sufficiently appears from the opinions.

John Cook, for defendants, appellants.

I. To lay the foundation of an attachment under- the Oode, the claim must arise out of some contract or obligation arising between the parties, and without that fact appearing from the plaintiffs’ affidavits, no claim can be made under section 227, as that section inevitably means that the claim must be a substantial one, arising out of some transaction had between the parties, aúd not upon any fictitious, visionary or imagined or supposed damages arising out of an alleged tort, which is the case in this complaint. (6 Abbotts’ Pr., 357.)

p. 602

II. All the authorities referred to at pages 362,364-367, 369-371, and also the sections of the Code, under the head of Attachments, referred to, speak of the defendant as a debtor, or of an actual debt existing in fact'between the o parties at the time the officer grants the attachment.

The complaint in this action does not claim, or pretend to claim that the plaintiffs are creditors of the defendants, nor is it pretended in the complaint or on the affidavits on which the attachment was issued, that the defendants, or either of them, are in any way or manner indebted to the plaintiffs ; on the contrary, the complaint and affidavits of the plaintiffs show clearly that there is no actual claim on the part of the plaintiffs against these defendants.

H. D. Sedgwick, for plaintiffs, respondents.

I. The affidavits on which the attachment was founded, exactly complied with section 229 of the Code, and contained all the three applicable requisites prescribed by that section, properly established as matters of fact.

(a.) It appeared by the affidavits, that a cause of action exists against the defendant.

(b.) They specified the amount of the claim, and the grounds thereof.

(c.) They showed that the defendant had departed from this State with intent to avoid the service of a summons. (Code, §§227,229; Gould v. Bryan, 3 Bosw., 626 ; see Iowa Code, 1851, §§ 1846, 1849, 1851; Laws Tenn., 1843, ch. 29; Thompson v. Carper, 11 Humph., [Tenn.,] 542, 545.)

II. It is wholly immaterial, under the Code, what is the nature of the cause of action existing in favor of the plaintiffs against the defendant.

The order appealed from should be affirmed with costs. (Floyd v. Blake, 19 How. Pr., 542 ; 11 Abbotts’ Pr., 349; Ward v. Begg, 18 Barb., 139 , 142; Hernstien v. Matthewson, 5 How. Pr., 196 ; see § 135 of Code [of 1849, and present ( Code, subs 2 and 3,] and compare with §§ 227,229, of Code; 2 R. S., 3, [5th ed. 3 R. S., 79,] §§ 1-4.)

An attachment may issue “in an action for the recovery of money.” (Code, § 227.) The affidavit on which the warrant may be issued must state enough to make it appear “that a cause of action exists against such defendant, specifying the amount of the claim, and the grounds thereof, and such facts and circumstances as will establish that the defendant is concealed,” &c., &c. (§ 229.)

Assuming that this action is for the recovery of money, it being an action claiming a perpetual injunction restraining the defendants from using their trade mark, &e., ( 2 Sandf., 599 , 619,) there is no averment in the affidavits or in the complaint, that upon an accounting by the defendants of the goods sold by them, if it be determined that the plaintiffs’ title is established, any indebtedness will appear, or the means by which thé Judge could ascertain such amount; nor is there any allegation of damage sustained by the plaintiffs by reason of the acts of the defendants ; the damage, if any, will be the profits, if any, of which they have been deprived by means of the defendants’ fraud.. In consequence of the difficulty of making out a decree of taking an account of profit, such an account is rarely taken. (3 Myl. & Cr., 428.)

The action, however, is not for the recovery of money; it is true that the plaintiffs have asked that the defendants make an account of their sales, but this is the usual form of prayer in the bill formerly filed in the Oourt of Chancery, and addressed solely to its equitable power," the decree providing for a reference to a Master, &c. ( 2 Sandf. Ch., 611 , 619.)

The warrant of attachment requires the Sheriff “to attach and safely keep all the property of such defendant within his county, or so much thereof as may be sufficient to satisfy the plaintiffs’ demand, together with his costs and expenses, the amount of which must be stated in conformity with the complaint.”

In the present action, costs are in the discretion of the Court; (Coats v. Holbrook, 2 Sandf. Ch., 598 ; Code, § 306;)

p. 604

and tMs action is an equity action and triable by the Court without a Jury.

The present action not being an action for the recovery of money, and the affidavits not showing that a cause of action exists (therefor) against the defendants, “ specifying the amount of the claim” and the grounds thereof, the attachment was improvidently granted, and it should be set aside. The order denying the motion to vacate and set aside the attachment was therefore erroneous, and must be reversed, but without costs of this appeal; ten dollars costs of motion to discharge the attachment to the defendant, Santiago Lindo, to abide the event of the action.

Is this “ an action for the recovery of money,” within the meaning of § 227 of the Code?

The various provisions of the chapter in relation to attachments, show that an action at law, to recover money as its main object, was contemplated. The judgment is to be satisfied out of the property attached, by selling real and personal property on execution. (Code of Pro., § 237.) Enough must be attached to satisfy the “plaintiff’s demand^ (Id., § 231.) The affidavit for an attachment must specify “the amount of the claim and the grounds thereof.” (Id., § 229.) In an action for the recovery of money, if a plaintiff recovers $50 or more, he recovers costs, as a matter of right, (Id., § 304, sub. 4;) if he fails to do this, he must pay costs.

This action is an equity suit, is triable by the Court, (Id. §§ 253, 254,) and the costs are in the discretion of the Court. (Id., § 306; Buchanan et al. v. Morrell et al., 13 How. Pr., 296 , decided under the Code as amended in 1851.) I think the attachment was improvidently issued.

Order reversed, without costs of appeal to either party, with $10 costs of motion to defendant to abide event;