
    Westervelt et al. v. Agrumaria Sicula Societa Anonima di Trasporti Marittimi.
    
      (Supreme Court, General Term, First Department.
    
    October 24, 1890.)
    Attachment—Affidavit—Unliquidated Damages.
    An affidavit for an attachment in an action to recover unliquidated damages must set out the facts relied on by plaintiff to prove his damage 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. An allegation that plaintiff bas been damnified to the extent of $5,000 is a mere expression of his opinion, which the court cannot consider.
    Appeal from special term, New York county.
    Action by William II. Westervelt and others against the Agrumaría Sicula Societa Anónima di Trasporti Marittimi to recover damages for breach of contract. There was an order denying defendant’s motion to vacate a warrant of attachment, the motion having been made on the papers whereon the warrant was granted; the affidavit being as follows: “Otto W. P. Westervelt, being duly sworn, says: ‘ I am one of the plaintiffs herein, and a member of the firm •of W. H. Westervelt & Co., whose principal place of business is at 24 State street, in the city of New York. My firm is a large importer of Italian green fruits from Sicily. We make advances upon said fruit. The same is sold at auction upon arrival, and the net proceeds, after deducting our charges or outlays, our commissions and advances, are remitted or credited to the shippers. The defendant, the “AgrumaríaSicula, Societa Anónima di Trasporti Marittimi,” is a foreign corporation, whose principal business office is in the city of Palermo, Sicily. Said corporation is formed as an anonymous society, and is trailing under the aforesaid name, and is incorporated and existing under the laws of the kingdom of Italy. The stockholders in said corporation are shippers of green fruit. It is important for such shippers to have the freights upon their shipments as low as possible, and for that reason they formed said corporation for the purpose of chartering steamers, and thus getting their freight expenses much lower than would have been possible if each separate shipper should pay his freight separately to independent steam-ship lines. Others than the members of said corporation also ship by the steamers thus chartered. The freights are collected in New York by the American agents of said corporation. At the meeting of said corporation, on February 15, 1889, my firm was appointed American agent thereof in New York, for the purpose of looking after the interests of the company, obtaining berths for its steamers, collecting its freights, and the like. We were so informed by Mr. Follino, one of the managers of the company, by letter dated March 6, 1889. With said letter was forwarded to us a printed copy of the resolutions or regulations of said corporation, as to the American agency, fixing our compensation and our authority. By said resolutions it was provided that the New York agency should take charge of and assume the responsibility for the steamers consigned to New York, Boston, Philadelphia, and Baltimore. The commissions which we were to receive for our services were fixed by section 6 of said resolutions as follows: First. Two and one-lialf per cent, on the freight to be collected on boxes of fruit. Second. Two per cent, on general merchandise. Third. One per cent, on sulphur and other minerals. On the commission of two and one-lialf per cent, the agency had to return one per cent, to the directors at Palermo; a like return was to be made as to the two per cent., and one-half per cent, upon said freights was to be returned on the commissions collected as to sulphur, etc. Such return commissions were, however, to be distributed at the end of each season among the consignees of fruit in proportion that each person interested in the enterprise should have received boxes of green fruit duringsuch season. The return commission upon steamers consigned to New York was as aforesaid; but as to steamers consigned to Boston, Philadelphia, and Baltimore,- the return commissions as to fruit and
    
      general merchandise was to be but one-half per cent., and as to sulphur, etc., there was to be no return commission. All office expenses, postages, telegrams, etc., were to be defrayed by the New York agency. The above resolutions were approved by the council of administration at their meeting of February 15, 1889, as we were informed at the time. My firm duly accepted said appointment as agents, and entered upon the performance of its duties. After the first few consignments of steamers, my firm received a check for its commissions, pursuant to said resolutions; but, since said receipt, although my firm has carefully performed all its agreements under said resolutions, as the New York agents of defendant, has looked after the defendant’s interests here, the collection of freights, the berthing of vessels, and the like, employing for said purpose the firm of Hirzel, Feltmann & Co., of 55 Beaver street, New York, for a valuable consideration allowed by us to said Hirzel, Feltmann & Co., said defendant has failed to pay said commission to plaintiff’s firm, and has directed said Hirzel, Feltmann & Co. to return and remit to defendant all moneys collected, and by letter dated May 6. 1890, informed my firm that the defendant had decided, at a general meeting on April 23d, to make no further payment to us of commissions from the time of the arrival of the steamships Edwin, and Bolivia, which steamers arrived as far back as November 5, 1889. We have duly demanded of the defendant through Angelo Tagliavia, our agent in Palermo, the carrying out of their contract of agency with us, or at least the payment to us of commissions earned, and of such return commissions as are due us as consignees of fruit. Ourdamages through the absolute refusal of the defendant thus to pay us, and through the summary breach of their contract with us, amount to $5,000. Said Hirzel, Feltmann & Co. have also refused to account to us for our said commissions, or for any sum whatever, which said firm has been collecting for us. My firm is entitled to recover said sum of $5,000 from defendant over and above all counter-claims known to me or my said firm. No previous application for a warrant of attachment against defendant has been made by plaintiffs.’” The objection taken to the affidavit is that it failed to set out how the damages of $5,000 were computed. Defendant appeals.
    Argued before Van Brunt, P. J., and Brady and Daniels, JJ.
    
      Ullo & Ruebsamen, (James W. McElhinney, of counsel.) for appellant. Hinrichs & Rudolph, (Fred. W. Hinrichs, of counsel,) for respondent.
   Van Brunt, P. J.

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. 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 be completely set forth where only nominal damages can be 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 proves 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 a 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 lias 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 $10 costs of appeal, and the disbursements. All concur.  