
    Ingalls Stone Company, Respondent, v. Lucian L. Nunn, Appellant.
    Third Department,
    December 30, 1909.
    Attachment — non-residence of defendant — proof of damage.
    A plaintiff suing to recover a'sum of money only is not entitled to an attachment on the ground of the non-residence of the defendant without proof by complaint or affidavit that he is entitled to recover a sum slated over and above counterclaims known to him.
    Thus, a plaintiff is not entitled to attachment'wliere his moving papers merely allege that after he had entered upon the performance of a contract to cut and deliver stone, and had, employed men for that purpose, the defendant revoked the contract whereby the plaintiff was left with the stone purchased for the execution of the contract partially manufactured, which will have to be stored at an expense and disposed of at such price as It will bring, and that by reason of the contract other work was postponed from which profits might ■have been made. Such allegations are mere conclusions and do riot show that the plaintiff is entitled to anything more than nominal damages.
    Chestee and Kellogg, JJ., dissented.
    
      Appeal by the defendant, Lucian L. Nunn, from an order of the Supreme Court, made at the Broome Special Term and entered in the office of the clerk of the county of Broome on the 27th day of September, 1909, denying the defendant’s motion to vacate a warrant of attachment.
    
      Simon Fleischann, for the appellant.
    
      C. H. Hitchcock, for the respondent.
   Cochrane, J.:

The warrant of attachment was issued on the ground of the non-, residence of the defendant. This motion to vacate the warrant is founded only upon the papers upon which it was granted and raises, therefore, the question of the insufficiency of those papers.

The plaintiff alleges a written contract whereby it agreed for the sum of $9,000 to manufacture and deliver to "the defendant all the stone work for a certain building then in process of erection by him ; that immediately upon making said contract plaintiff entered upon the performance thereof and discontinued other work at its factory and purchased a large quantity of stone for the purpose of manufacturing the same for the defendant and émployed mentó do the necessary work in connection therewith; that six days after the contract was made defendant revoked his contract to plaintiff’s great loss and injury; that plaintiff is left with certain stone manufactured and partly manufactured for said contract which is of no value to ib; ” that a large quantity of stone purchased for the execution of the contract the plaintiff will have to store at an expense and dispose of from time to time- as opportunity may offer and at such-price as it may be able to obtain ; that the plaintiff at defendant’s request discontinued other work at its factory and declined and postponed other work and employed skilled men . in the execution of said contract which said labor and time has been wholly lost to the great damage and injury of plaintiff. The complaint concludes as follows: That plaintiff has suffered loss and damage in the premises by reason of the facts aforesaid, and also for the profits which it might and could have gained but for defendant’s countermand of his order in the sum of” $2,000, for which sum judgment is demanded. A copy of the contract is attached- to the complaint showing specifically the stone work required and that delivery thereof was to begin within two weeks and-providing for subsequent deliveries, and also containing this provision: “ This ¡ contract being given with the understanding .that early delivery is of vital importance it is agreed that the entire capacity of. your Bedford plant be reserved exclusively for this job.”

The attachment was issued on the. complaint and on an affidavit, the only important statement in which other, than the' statement of the non-residence of defendant was as.follows: “ That the plaintiff is justly entitled to recover from the defendant the amount of damages mentioned in the complaint, to wit, the sum of Two thousand-($2,000) dollars, over and above all counterclaims known to the plaintiff Upon the cause of action which is set forth in the complaint herein, which is hereby referred to and made a part hereof.” .

In order to sustain this attachment it must appear from the affidavit and the complaint treating the-latter also as an affidavit that the plaintiff is entitled to recover $2,000 over and above all counterclaims known to it. (Code Civ. Proc. § 636, subd. 1.) This being an action for unliquidated damages, evidentiary facts must appear showing prima facie that plaintiff has sustained damages to the extent claimed. (Chazy Marble Lime Company v. Deely, 88 App. Div. 150 ; Delafield v. Armsby Company, 62 id. 262; Southwell v. Kingsland, 85 id. 384; Haskell v. Osborn, 33 id. 127.)

In Chazy Marble Lime Company v. Deely (supra) the head note is as follows: “ While an attachment may be granted where unliquidated-.damages only are demanded there must bfe sufficient evidence of such damages to authorize the court to sa y prima facie that'the plaintiff has sustained damages to the extent of the amount claimed.”

In Haskell v. Osborn (supra) it was said: “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 prove his damages, in order that the court may judge as to whether .he has evidence of damages, and that his allegations of damage are not mere matter of-speculation.”

In Haebler v. Bernharth (115 N. Y. 459), relied on- by plaintiff, the only question'in the Court of Appeals was the question of jurisdiction. That case was explained in Southwell v. Kingsland (supra), the court saying: “ ‘ The jurisdiction of the two courts upon appeal being essentially different, one weighing the evidence and the other only seeing whether there is any evidence to support the necessary allegations.’ ”

The complaint herein stripped of conclusions alleges merely the contract, the partial performance thereof by plaintiff, its rescission by defendant; and certain facts indicating partial performance from which special damages may have been sustained. There is no specific statement' as to how much work the plaintiff has performed or how much material it has furnished, or that it cannot dispose of its material in the market; nor is there any statement showing the mental process by which plaintiff arrives at its conclusion as to the amount of damages. There is no statement as to what the contract would have been actually worth to plaintiff if it had been completed, nor any statement warranting the conclusion that the plaintiff has lost $2,000. Every statement of fact in the complaint and affidavit might be true if plaintiff had sustained only nominal damages. The complaint may be sufficient as a pleading, but it is quite insufficient as an affidavit on which to base an attachment. The authorities are against an attachment on such evidence.

In Penoyar v. Kelsey (150 N. Y. 77) the court said, in speaking of this remedy of attachment: “ Owing to the statutory origin and harsh nature of this remedy the section in question should be construed, in accordance with the general rule applicable to statutes in derogation of the common law, strictly in favor of those against whom it may be employed.”

Within the principle of the cases cited plaintiff failed to establish that it was entitled to recover a specific amount over and above all counterclaims known to it, and the order denying the defendant’s motion to vacate the attachment must, therefore, be reversed, with ten dollars costs and disbursements, and the motion granted, with ten dollars costs.

All concurred, except Chester and Kellogg, JJ., dissenting.

Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.  