
    THEODORE HAEBLER, et al., Respondents v. JOHN G. BERNHARTH, et al., Appellants.
    
      Motion by defendant to vacate attachment on the papers on which it was issued, permitting an affidavit to be read in opposition, when not substantial error, Haebler v. Bernharth, 115 N. Y. f59,— effect of on question of sufficiency of affidavit. .
    
    Permitting an affidavit to be read in support of an attachment upon a motion to vacate upon the papers on which the warrant of attachment was granted, is not substantial error where the affidavit on which the warrant of attachment was granted, authorized its issue.
    In the case at bar the Court of Appeals, in 115 N. Y., 159, has held that the affidavit on which the attachment was granted was sufficient to authorize its issue.
    Under this decision the permitting the plaintiff to read an affidavit in opposition to a motion by defendant to vacate the warrant of attachment on the papers on which it was issued, was not substantial error.
    Before Sedgwick, Ch. J., Freedman and O’Gorman, JJ.
    
      Decided May 5, 1890.
    Appeal from an order denying defendants’motion to vacate the attachment issued herein on the papers whereon it was granted.
    The affidavit on which the attachment was granted was as follows :
    “ Theodore Haebler, being duly sworn, says: That he is one of the plaintiffs named in the above entitled action, which has been brought to recover the sum of one thousand sixtyrfour dollars as damages suffered by the plaintiffs by reason of a breach of warranty by the defendants as to the kind and quality of one thousand bags of beans, purchased and paid for by the plaintiffs to be shipped by the defendants from Havre, France, under said warranty.
    
      
      “ That the defendants are not residents of this State, .but reside at Havre, France.
    “ That the plaintiffs are entitled to recover from the defendants the sum of one thousand sixty-four f0’0 dollars over and above all counterclaims known to deponent.”
    The other matters sufficiently appear in the opinion.
    
      Couclert Brothers, attorneys and of counsel, for appellants, on the questions considered in the opinion, argued :—
    I. The attachment can only be sustained, if at all, upon the affidavit, recited in the warrant. No further proof can be given in plaintiffs’ behalf. Buhl v. Ball, 41 Hun, 61 ; Pach v. Orr, 15 Code C. P. 176, and cases cited, p. 178.
    II. The plaintiffs must affirmatively establish every fact necessary to sustain their attachment. Richter v. Wise, 6 T. & C. 70 ; S. C. 3 Hun, 398 ; Smith v. Davis, 29 lb. 306 ; Pomeroy v. Ricketts, 27 lb. 242 ; Reilly v. Sisson, 31 lb. 572 ; Labalt v. Schulhof, 4 N. Y. Supp. 819 ; Pomeroy v. Moss, 15 Weekly Digest, 25 ; Golden Gate Concentrator Co. v. Jackson, 13 Abb. N. C. 476 ; Walts v. Nichols, 32 Hun, 276 ; Manton v. Poole, 67 Barb. 330. The cases cited by plaintiffs as to the sufficiency of the affidavit have no application here ; in those cases facts, and not conclusions drawn from facts, were alleged. The general term of this court has previously and very properly criticised and condemned this affidavit in the strongest terms. 56 N. Y. Super. Ct. 575. All the Court of Appeals has decided, respecting the affidavit, is, that “ dealing solely with the question of jurisdiction,” they thought it. sufficient, but they reaffirm the principles above referred to, as to the necessity of establishing’affirmatively by the affidavit, “ a full and clear statement of facts, bringing the case immediately within the statutory conditions before granting the warrant.” Our contention as to the effect of the decision of the Court of Appeals just mentioned is sustained by Judge O’Brien in Supreme Court Chambers (N. Y. Law Journal, Jan’y 14th, 1890), in Belmont v. Arizona Copper Co., wherein he says : “ This case comes within the principle stated in Golden Gate Co. v. Jackson, 13 Abb. N. C. 476 ; and the rule there laid down is not affected by the decision of the Court of Appeals in Haebler v. Bernharth, 115 N. Y. 459. The motion to vacate in the latter case was not made by the defendant. If it had been, the court said it would not have interfered with the decision below. The question there was strictly one of jurisdiction. The question here, however, is—conceding the jurisdiction-—whether the attachment ought to have been granted. When the motion to vacate is made by the defendant, that is the real question. Allen v. Meyer, 73 N. Y. 3. Here the value of the property is not stated at all. The plaintiff simply states that upon the facts alleged he has suffered damages to the amount of $25,000. That is his opinion. He might as well have put his damages at $250,000. An attachment requiring the sheriff to sieze property sufficient to cover a precise amount should not be granted upon such an affidavit. The plaintiff should at least have furnished some evidence of the value of the property with respect to which he claims damages. The motion to vacate should therefore be granted.”
    III. The Code of Civil Procedure, § 636, distinctly requires that “if the action is to recover damages for a breach of contract, the affidavit must show that the plaintiff is entitled to recover the sum stated therein.” This means that he must show by legal proof the facts, so that the court may infer from them that he is entitled to at least the amount of the attachment. The complaint does not approach this requirement. The court is not permitted to assume the existence of any facts not clearly alleged. 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 (Opinion, Court of Appeals herein); but on this appeal the court cannot spell out facts, by applying the rule of damages for the purpose of showing that the plaintiffs have been damaged to some extent. Andrews, J., in the opinion of the Court of Appeals herein (supra), says : “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;” And so the Court of Appeals, on the motion made by the subsequent lienors, held that there was sufficient in the papers to confer jurisdiction, upon this court, but they add the expressed words-: “ The complaint and affidavit upon this point are undoubtedly very general and are open to criticism. But dealing here (in the Court of Appeals) solely with the question of jurisdiction, we, think the affidavit did tend to show a cause of action on contract and a liability of the defendants to the amount stated.”
    IY. The attachment cannot be sustained for the amount of unliquidated damages, by reason of the breach of a contract. It does not follow that because a party is damaged by the breach of a contract, that .he is entitled to obtain an attachment as a matter of course.
    
      Marshall P. Stafford, attorney and of counsel, for respondents, on the questions considered inthe opinion argued :—
    I. The attachment was warranted by the papers on which it was granted, (a). This is settled by the decision of the Court of Appeals in this action. Haebler v. Bernharth, 115 N. Y. 459. That decision may not make the question technically res adjudicata as to the appellants, but it settles the law of the matter. (6). In the court below, the appellants contended that the decision of the Court of Appeals makes a distinction between a defendant and a subsequent lienor as to facts necessary to justify the issuing of a warrant of attachment. There is no basis for this claim. The Court of Appeals make a distinction between a defendant and a subsequent lienor as to the right to appeal to that court from an order granting or vacating an attachment. There is not the slightest intimation that an attachment may be justified by the papers on which it was granted if a subsequent lienor moves to vacate, but not so justified when the defendant moves, (c). In the court below counsel for appellants laid much stress on the fact that the Court of Appeals held that when subsequent lienors moved they must stand upon a strict legal right, but that when a defendant moved it was' discretionary with the court whether the attachment should be vacated or not. The lan-. guage of the Court of Appeals thus sought to be availed of in support of this motion was used solely in reference to the right to appeal to. that court, and it is a manifest perversion of it to give it a bearing upon any other point. It affords no basis whatever for a claim that the Court of Appeals did not mean and decide that the attachment was properly granted and ought not to be vacated on any one’s motion on the ground that it was not justified by the papers on which it was granted, (cl). The judge who granted the warrant necessarily exercised his discretion as to the sufficiency of the papers. He held them sufficient and the Court of Appeals has decided that he was justified in exerising this discretion in the way he did. It is well settled that a motion to vacate an attachment as not warranted by the papers on which it was granted will be denied if there is enough to call for the exercise of the judicial discretion of the judge who granted the warrant. The attachment must be absolutely and totallyj unwarranted before it will be vacated on this ground. The judge who exercised his discretion in granting the warrant was called upon to exercise his discretion about it again on the motion resulting in the order from which this appeal is brought. He exercised it on this second occasion with the same result as he did on the first, which the Court of Appeals has decided he was fully justified in doing. It was therefore difficult to see how the question of “ discretion ” can be advantageously invoked here by the appellants.
    II. Laches in moving would be sufficient ground for denying the motion to vacate.
    III. The affidavit of Mr. Stafford was properly received, the motion being based on an affidavit as well as the original papers. Even if it had been otherwise inadmissible, it was proper for the purpose of showing what papers in fact were before the judge when he granted the attachment. This matter was all gone over on the Myers appeals. If the affidavit is admissible, for any purpose, then it must stand, since the objection was general. The motion for resettlement was properly denied.
   By the Court.—O’Gorman, J.

The warrant of attachment in this case was granted by the court on April 5, 1888.

An order to show cause why the attachment should not be vacated on the papers upon which the same was granted, was made on November 10, 1889.

The motion on the order to show cause was denied by the judge at special term, and from that decision the defendants appeal, on the ground that the court allowed the plaintiffs to submit an affidavit in opposition to the defendants’ motion to vacate the warrant made in November, 1889,—that the court had not power to receive and consider said affidavit on defendants’ motion to vacate—that plaintiffs had been guilty of laches in offering said affidavit, setting forth that the plaintiffs had obtained a judgment against the defendants by default—that the money held by the sheriff on the plaintiffs’ attachment had been by some indirection applied to payment of a judgment of another creditor of the parties defendant, and an action against such creditor for restitution of such money, is now pending.

The delay of defendants in moving to vacate tho attachment is laches, which' did not seem entitled to much favor from the court before which tho motion to vacate was made.

- The permission of the court to the plaintiffs’ counsel to read affidavits as to occurrences in the action since the granting of the attachment, was not substantial error.

The affidavit on which the warrant of attachment was granted, discloses facts sufficient to warrant the order. Haebler v. Bernharth, 115 N. Y. 459, 462.

The remedy by attachment is summary and should not be hampered an d frustrated by unnecessary technicality, although all proper precautions should be taken to protect a defendant against imposition or oppression.

The order appealed from should be affirmed, with costs.

Sedgwick, Oh. J., and Freedman, J., concurred»  