
    James H. Birdsall, Resp’t, v. Harry F. Emmons et al., App’lts.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed July 26, 1895.)
    
    Attachment—Affidavit.
    The affidavit, upon which the attachment was granted in this case, was held sufficient to set forth a complete cause of action upon an expressed and implied contract, and a breach thereof on the part of the defendant.
    Appeal from an order delating a motion to vacate an attachment.
    The affidavit filed in support of the motion for an attachment is as follows:
    James H. Birdsall, being duly sworn, says that he is the plaintiff in this action; that a summons has been issued therein; that this action is to recover a sum of money only, as damages, for the cause hereafter stated, by the above-named plaintiff against the above-named defendants. Deponent further says that a cause of action exists in favor of said plaintiff against said defendants, for which said action is commenced, or is about to be, and that the amount of the plaintiff’s claim in said action is, and plaintiff is entitled to recover thereon, the sum of three hundred and fifty-eight dollars and forty-three cents, and interest from the - 18th day of April, 189-4, over and above all counterclaims known to plaintiff; and that the grounds of said claim and cause of action are that between the 26th day of February and the 18th day of April, 1894 (both inclusive), the above-named plaintiff purchased from the above-named defendants, who then were, and still 'are, copartners engaged in business at the city of Detroit, Michigan, under the firm name of H. E. Emmons & Co., goods and merchandise, consisting of hay, of the value of $2,979.82, which said merchandise was sold and delivered to plaintiff, at the city of Hewburgli, and various other places in the state of Hew York; that plaintiff made advances to defendants upon said merchandise so purchased by him from defendants as aforesaid, and also paid certain freight, commissions and other necessary charges against and upon said merchandise, amounting to the aggregate sum of $3,438.25, making the amount overpaid to said defendants $458.43, and by reason of the foregoing overpayments the said defendants became indebted to this plaintiff in the sum of $458.43, and that no part thereof has been paid, except the sum of $100, and there is now actually due and payable upon said demand, from the defendants to the plaintiff, the sum of $358.43 over and above all counterclaims known to plaintiff, this deponent; that plaintiff has demandéd the sum so due and owing from the defendants, but defendants have refused and neglected, and still refuse and neglect, to repay plaintiff the sum so overpaid to defendants, and now due and owing to plaintiff, or any part thereof; that the plaintiff is a resident of the city of Newburgh, in the county of Orange, and state of New York ; that the defendants are not, nor is either of them, a resident of this state, but that said defendants, and both of them, are nonresidents of the state of New York, and that defendants, and both of them, reside at the city of Detroit, in the state of Michigan, as plaintiff is informed by numerous written admissions and statements made by said defendants to plaintiff, and that defendants, are now engaged in business at Detroit, Michigan, under the firm name or style of H. E. Emmons & Co.; that the defendants have property within this state, to wit, about 900 bushels of oats at Highland Mills, Orange county, New York, which said property is, as deponent is informed and believes, of the net value of about $270; that the plaintiff is entitled to recover the sum above stated, over and above all counterclaims known to the plaintiff.
    The plaintiff therefore hereby applies for a warrant of attachment against the property of said defendants, according to the Code of Procedure, as a security for the'satisfaction of such judgment as the plaintiff may obtain against the defendants in this action.
    
      A. J. Skinner, for app’lt; C. L. Waring, for resp’t.
   Dykman, J.

This is an appeal from an order made at the special term, denying a motion to vacate an against property of the defendants, who were nonresidents, on the ground that the affidavit upon which the attachment was issued failed to state facts sufficient to constitute a cause of action. The attachment was issued on the 5th day of February, 1895, and on February 18, 1895, the property attached was sold, by order of the court, as perishable property. The defendants have not appeared or answered, and judgment in favor of the plaintiff has been duly entered in Orange county. An order to show cause why the attachment should not be vacated was made returnable on the 16th day of April, 1895, and the motion to vacate the attachment was made on that day, and denied, with costs. The motion to vacate the attachment was based on the contents of the affidavit of the plaintiff upon which the attachment was based, and no counter affidavits were used. In our view, the affidavit upon which the attachment was granted is sufficient, and sets forth a complete cause of action upon an expressed and implied contract, and a breach thereof on the part of the defendant. The order should be affirmed, with costs.  