
    Champion Card and Paper Co., App’lt, v. Benjamin T. Searing et al., Resp’ts.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed January 23, 1888.)
    
    1. Attachment—When issued—What an injury to property under Oode Civ. Pro. , § 635, subdivision 3.
    An attachment may he granted in an action founded upon an allegation that goods were obtained by false representations on the ground that it is an injury to personal property. (Overruling Wittner v. Von Minden, 27 ' Hun, 234.
    :2. Same—Pleading—Necessary allegations.
    Under Code Civ. Pro., § 635, subdivision 3, it is not necessary to allege that the claim is due over and above all counterclaims. That is'only required when the action is for a breach of contract express or implied, other than a contract to marry.
    Appeal from order vacating an attachment.
    
      T. J. Worcester, for app’lt; D. B. Wilmot, for resp’ ts.
   Brady, J.—The

affidavit upon which the attachment was granted states a variety of facts and circumstances of which the plaintiff predicates the charge that the indebtedness of the defendants alleged is the result of a credit which was induced by false and fraudulent representations and also the further charge founded upon statements made by the defendant Searing, to the president of the plaintiff that he had disposed of his property for the purpose of preventing his creditors from levying upon it and therefore with the intention to defraud them. The affidavit omits to state, however, that the sum claimed was due over and above all counterclaims, and the learned justice who heard the motion to discharge the attachment regarding the action as one to recover for a breach of contract, held that the omission mentioned was fatal and vacated the attachment.

The learned justice relied upon the case of Whitney v. Hirsch (39 Hun, 325). In that case which was similar to this in the character of the allegations, the court said that if the action should be held to depend upon the allegations of fraudulent representations it would still be one in which an attachment could issue for the reason that by subd. 3 of § 635 of the Code such a process was authorized for fraud, negligence or other wrongful act as well as for any other injury to property not mentioned in subd. 2 of the same section, and that an injury to property had been defined by subd. 10 of § 3343 to include an act whereby the estate of another is lessened other than a personal injury or the breach of a contract, and the court said, “the fraudulent representations made were certainly not a personal injury nor a breach of contract, but they did constitute an actionable act for fraud whereby the estate of the plaintiffs was diminished or lessoned so far as they were induced to part with their goods in reliance upon the faith of the representations and that in this definition of an injury to personal property an attachment may be issued in an action based upon it under subd. 3 of § 635 of the Code.

The learned justice who wrote the opinion criticised the case of Wittner v. Von Minden (27 Hun, 234), in the decision of which he participated and intimated that that case was in conflict with the provisions of the statute and could not therefore be maintained. The writer of the present opinion dissented from the views expressed by the learned justice, but Justice Davis in writing the decisive opinion said that if the question decided in Wittner v. Von Minden were an open one it might well be doubted whether the attachment in this case should not be upheld.

Under the third subdivision of section 635 it is not necessary to allege that the claim made is due over and above all counterclaims. That is only required when the action is for a breach of contract, express or implied other than a contract to marry.

In Wittner v. Von Minden the court had decided that the Code did not provide for an attachment in an action brought to recover the price or value of goods obtained by false representations.

I am of the opinion after reflection upon the suggestions made by Judge Daniels in Whitney v.Rirseh that an attachment may be granted in an action founded upon the-allegation that goods were obtained by false representations and upon the grounds stated by him in which Judge Davis concurred. This distinction was not noticed by the learned justice who decided the motion herein as it did not occur to the present writer when the case of Wittner v. Von Min-den was disposed of. The order should be reversed with ten dollars costs and disbursements.

Van Brunt, P. J., and Daniels, J., concur.  