
    Theodore Haebler et al., App’lts. v. John G. Bernharth et al., Resp’ts.
    
    
      (Court of Appeals,
    
    
      Filed October 8, 1889.)
    
    1. Appeal — Lies to court op appeals from order vacating attachment on application oe subsequent lienor.
    An order of general term, affirming an order vacating an attachment at the instance of a subsequent creditor or lienor, is appealable to the court of appeals.
    2. Attachment — Proof sufficient for.
    Where the complaint alleged breach of warranty as to kind and quality on a sale of beans; that those delivered were greatly inferior to the sample, and that plaintiffs were damaged in a certain amount, and the affidavit showed that defendants were non resident, and that plaintiffs were entitled to recover the sum named in the complaint over and above all counterclaims known to the affiant, Held, sufficient to sustain an attachment issued in the action.
    Appeal from order of the general term of the superior court of New York, affirming order of special term of that court vacating a warrant of attachment.
    
      Marshall P. Stafford, for app’lts; M. H. Cardozo and M. H. Nathan, for resp’ts.
    
      
       Reversing 23 N. Y. State Rep., 199.
    
   Andrews, J.

The general rule that no appeal lies to this court from an order of the general term vacating an attachment, notwithstanding there was j urisdiction to grant the writ upon the papers presented on the application therefor, does not in reason apply where the attachment is vacated on the motion of a subsequent attaching creditor or lienor. The general rule proceeds on the ground that a plaintiff in an action has no absolute legal right .to the issuance of an attachment against the property of a defendant. The court or officer to whom an application for an attachment is made may deny the application, although a formal case may be made, either because the facts are stated with too much generality, or the case made is not in the opinion of the court or judge sufficiently plain to justify this extraordinary remedy, or instead of denying the application absolutely, the court or officer may require additional proof of the jurisdictional facts, although there is not an entire absence of evidence of their existence in the proofs presented.

Where an attachment is granted the defendant may appeal to the general term, and upon such appeal the general term may review the discretion exercised in granting the attachment, as well as the question of jurisdiction. If the general term vacates the attachment on the appeal of the defendant in the action, it will be deemed to have acted in the exercise of its discretion, unless its decision is placed solely on the question of power, and there the matter ends and no further review can be had.

But where the proceeding to vacate the attachment is taken by a subsequent lienor and not by the defendant in the action, and the appeal to the general term is taken by him, the question before the general term is one of strict legal right, and no question of discretion is presented. The sole point then to be determined is as to priority in point of law of the hens of the respective parties. It is then purely a question whether there was jurisdiction to grant the attachment on the papers presented.

It would be an anomaly that a court would exercise a discretion as to which of two contesting creditors it would award priority of lien.

The order of the general term in this case, which affirmed the order of the special term vacating the plaintiff’s attachment at the instance of a subsequent creditor, is therefore appealable to this court. We think the papers presented to the judge, upon which the attachment was granted, contained some evidence to establish all the necessary jurisdictional facts, and justified the granting of the writ. These papers consisted of a complaint, verified by the plaintiff, and a separate affidavit made by him. The complaint set forth a cause of action on contract for the breach of a warranty on the sale of beans. It alleges that between the 30th day of January and the 4th day of February, 1888, the plaintiffs bought of the defendants one thousand bags of beans, to be shipped from France, and that the purchase price was paid March 22, 1888; that the defendants warranted that the beans should be of a kind and quality equal to a sample furnished at the time of the purchase; that the beans delivered under the contract were of a kind and quality not equal to the sample, but were greatly inferior thereto; but by reason of the breach of warranty the plaintiffs were damaged in the sum of $1,064.51.

The affidavit states the purpose of the action; that the defendants are non-residents of this state, and reside at Havre, France, and that the plaintiffs are entitled to recover from the defendants the sum of $1,064.51, over and above all counter claims known to the affiant.

Section 636 of the Code prescribes the conditions of procuring an attachment By subdivision 1 of that section, the plaintiff must show by affidavit, to the satisfaction of the judge, that one of the causes of action specified in the last section, § 635, exists against the defendant. If the action is to recover damages for breach of a contract, the affidavit must show that the plaintiff is entitled to recover a sum stated over and above all counter-claims known to him.” The case comes under this subdivision.

Objection is taken that the contract on which the action is brought is not alleged with sufficient definiteness in the complaint; .but the principal objection is that no facts are shown upon the papers from which it can be seen that the plaintiffs have sustained damages from a breach of the warranty to the amount of $1,064.51, or, indeed, in any amount beyond nominal damages. The complaint contains all the necessary elements of a cause of action for a breach of warranty. It alleges a sale, a warranty, a breach of the warranty, and damages consequent thereon, in a sum stated. The affidavit supplements the statement of the amount of damages in the complaint, by the averment that the plaintiffs - are entitled to recover that sum for the breach of the warranty over and above all counter-claims. The rule of damages upon the facts stated is the difference in value between beans of the kind and quality of the sample and those of the kind and quality delivered. The complaint does not distinctly show upon its face that upon this rule the damages would be the sum stated. But it cannot be inferred that beans greatly inferior in quality to those warranted would be worth but a nominal amount less than beans of greatly superior kind and quality. The difference in the value of' different kinds of merchandise is in very many, perhaps in most cases, mere matter of opinion. The allegation in the complaint that the damages were the sum stated is an averment of a fact in form, but really of the opinion of the plaintiffs that the damages were so much, and this they verified. The complaint and affidavit upon this point is undoubtedly very general, and is open to criticism.

But dealing here solely with the question of jurisdiction, we think the affidavits did tend to show a cause of action on the contract and a liability of the defendants to the amount stated, and this was enough to sustain the attachment. Steuben Co. Bank v. Alberger, 78 N. Y., 258.

These views lead to a reversal of the orders of the special and general terms.

Many cases have been cited upon the point that affidavits to procure an attachment should make a plain case, and attachments have been frequently vacated because the facts were loosely, or argumentatively, stated in the affidavits. It is certainly reasonable that the judge should insist upon a full and clear statement of facts, bringing the case immediately within the statutory conditions, before granting the warrant The issuing of process by which the property of a defendant may be impounded before judgment should he attended with all reasonable safeguards to prevent imposition or oppression.

If the order vacating the attachment from which this appeal is taken had been obtained on the application of the defendant in the action, this court could not interfere. But as the action of the special and general terms is divested of any element of discretion, and the only inquiry is whether the affidavits conferred jurisdiction to grant the warrant, the conclusion that jurisdiction existed determines the appeal.

The orders of the special and general terms should he reversed and motion denied, with costs.

All concur.  