
    Calmon Asbestos and Rubber Works of America, Respondent, v. Asbest-Und-Gummiwerke, Alfred Calmon, Agent, Appellant.
    First Department,
    December 2, 1910.
    Attachment — sufficiency of moving affidavits — conclusions of fact not justifying attachment — allegations justifying attachment.
    The moving papers on an application for an attachment must state evidentiary facts from which the judge may conclude that one of the causes of.action specified in section 635 of the Code of Civil Procedure exists. Mere conclusions of fact appropriate to a pleading do not suffice.
    An attachment against a non-resident defendant in an action for breach of contract to supply goods in conformity with samples, which goods were returned as unmerchantable, should not be granted where the moving papers state no evidentiary facts from which the court can' determine that there was a breach of warranty, or that the right to rescind had not been lost by too long a retention of the goods after delivery. .Mere allegations - that the goods after inspection were found to be unmerchantable and not of the kind and size ordered by the plaintiff and agreed to be delivered by the defendant and were of no value, "are insufficient.
    An allegation, that certain automobile -tires warranted to bear common usage for 5,000 miles when sold to the plaintiff’s customers did not serve on an average for more than 3,000 miles, although made on knowledge, must be treated as an averment on information and belief, and an attachment cannot issue unless the moving papers state the sources and grounds of the affiant’s belief with sufficient 'definiteness to enable the court to determine the facts "with reasonable certainty.
    But an allegation that at the time of the purchase of said tires the defendant agreed to pay the plaintiff one-half of the expense of establishing a demand for them in the United States and one half of the expense of. selling them, not to , exceed a certain sum, and that the plaintiff incurred expense of a certain amount " between certain dates in endeavoring to create a demand for the tires and developing the business, states facts sufficient to justify the court in issuing an attachment for the percentage due from the defendant.
    
      Appeal by the defendant,. Asbest-TJnd-Gummiwerlce, Alfred Calmon, Agent, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 19th day of October, 1910, denying the defendant’s motion to vacate a- warrant of attachment.
    
      Herbert H. Limburg, for the appellant. •
    
      Charles 8. Mackenzie, for the respondent.
   Miller, J.:

The motion was made on the ground that the papers upon which the warrant of attachment was granted were insufficient. Those papers consisted of an affidavit showing the non-residence of the defendant, and the complaint, which purports to allege three causes of action. The averments of the first and third are similar, except with respect to dates and amounts. In the first it is averred “ that during the year 1909, plaintiff bought certain goods of the defendant by sample furnished plaintiff by defendant, which represented sound and. merchantable goods suitable for and known as asbestos listing, which goods defendant agreed should in all respects be equal to said sample and plaintiff bought relying, thereon; ” that, by the terms of said agreement of sale, the plaintiff was required to and did pay the purchase price ($8,000) before delivery; that “ thereafter * * * sapj goods having been shipped * * * from Genoa, Italy,, arrived at the port at New York, and thereafter and within a reasonable time, were inspected and found to be imperfect, unmerchantable and wholly unfit for the asbestos listing of the kind and size ordered by plaintiff and agreed to -be delivered by defendant, and of no value therefor.” Then follow averments with respect to loss of profits, payment by the plaintiff of customs duties, freight and' other charges in order to obtain the goods, notice to the defendant that the goods were not equal to sample and an offer to return them, and the refusal of' the defendant to receive them or to return the purchase price and to pay the expenses incurred by the plaintiff and its loss of profits.

Section 636 of the Code of Civil Procedure provides that “To entitle the plaintiff to such a warrant, he must show by affidavit to the satisfaction of the judge granting the same, as follows: 1. That one of the canses of action specified in the last' section exists against the defendant.” The statute requires proof by affidavit of the evidentiary facts from which the judge may conclude that one of the causes of action specified exists. Mere conclusions of fact, appropriate to a pleading, do not suffice. (Ingalls Stone Co. v. Nunn, 136 App. Div. 142, and cases cited.)

The plaintiff’s theory of the Complaint is that it alleges an executory agreement to sell and deliver, while the defendant asserts that an executed sale is pleaded and contends that, in such case, in the absence of fraud, there is no right of rescission for breach of warranty. It may be somewhat doubtful from this complaint when the title to the goods passed, but we do not deem it necessary to decide the interesting question of whether there was a right to rescind. for breach of warranty, because no evidentiary facts are stated from which the court can determine either that there was a breach of the warranty or that the right to rescind had not' been lost by too' long retention of the goods after delivery. It is not stated in what respect the goods were imperfect, unmerchantable or unfit for the asbestos listing of the kind and size ordered. It is not ■ even averred that the goods delivered were different in kind and size from the goods ordered. Moreover, it is not stated when the goods arrived at the port of Mew York or when they were inspected by the* plaintiff and found to be imperfect, unmerchantable and unfit for use. The judge might differ with the plaintiff as to what constituted a reasonable time, and the statute requires that the. judge be satisfied by affidavit. It follows that the facts stated with . respect to the first and third causes of action were insufficient to justify the granting of the warrant. ,

The seCond cause of action embraces two items: One, for damages for breach ■ of warranty, accompanying the sale of á lot of automobile tires; and the other, for breach of an agreement to pay one-half of certain expenses incurred by the plaintiff. With respect to the first item, it is averred that the defendant warranted that said ' tires would'stand the automobile wear and tear of common usage for 5,000 miles; that they were ordered by the plaintiff for resale to its customers and were so sold in the regular course of business, and that they did not run 5,000 but only ran on an average of about 3,000 miles. While that averment is made on knowledge, it must be treated as an averment on information and belief as it is obvious that the plaintiff did not have actual knowledge of the facts. In such case it is necessary to state the surrounding circumstances, the sources and grounds of the affiant’s belief, with sufficient definiteness to enable the court to determine with reasonable certainty tliat the facts are as claimed. While absolute certainty is not required (Brandly v. American Butter Co., 130 App. Div. 410), it has never been held that the bare statement of a fact on information and belief is sufficient, where proof of the fact" by affidavit is required.

With respect to the second item in the second cause of action,"it is averred that at the time of the purchase of said tires the defendant agreed that, if the plaintiff would purchase and proceed to introduce and sell them in the United States, it, the.defendant, would pay to the plaintiff one-half of the cost or expense of establishing a demand for them, including one-half of the cost and expense of the business of selling them, not exceeding $450 per month, and that the plaintiff incurred an expense of $1,350 between the 15th of November, 1909, and the 1st day of January, 1910, in endeavoring to create a demand for said tires and in developing the business of selling. Here, we find definite statements of fact, sufficient to justify the judge in concluding that the plaintiff did have a cause of action to recover at least the sum of $675 on contract. He, therefore, had jurisdiction to grant a warrant of "attachment for that amount.

The order appealed from should, therefore, be reversed, with ten dollars costs and' disbursements, and the motion granted, with ten dollars costs, to the extent of modifying the warrant of attachment so as to provide that it is granted for the sum of six hundred and seventy-five dollars only.

Ingraham, P. J., Laughlin, Clarke and Scott, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motion granted to the' extent stated in opinion, with ten dollars costs. Settle order on notice.  