
    Walter T. McGinley, Respondent, v. Edward J. Gildersleeve, Appellant.
    First Department,
    February 21, 1908.
    Attachment — requisites of moving affidavit.
    The moving affidavit on an application for an attachment in an action to recover . damages for a breach of contract must allege that the plaintiff is entitled to recover the sum stated “ over and above all counterclaims known to him.’-’ In the absence of such allegation the attachment will be vacated. ’
    Appeal by the defendant, Edward J. Gildersleeve, from an order of the Supreme Court, made at the New York .Special Term and entered in the office of the cleric of the county of. New York on the 13th day of December, 1907, denying the defendant's motion to vacate a warrant of attachment herein.
    
      F. X; Donoghue, for the appellant.
   Ingraham, J.:

The attaehriient was granted upon the plaintiff’s affidavit, which states that the action is brought to recover the sum of $800 and interest due from the defendant under an agreement made oh the 28th of April, 1906, thereafter duly delivered to the plaintiff, a copy of which agreement is annexed to the affidavit, and that thereby the defendant promised and agreed, for a good and’valuable consideration, to pay to the plaintiff the sum of, $800 in Installments. There was no statement in this affidavit that this amount was due to the plaintiff over and above all counterclaims. By section 636 of the Code of Civil Procedure, to entitle a plaintiff to a warrant of attachment, “lie must show by affidavit to the satisfaction of the judge granting the same * * * that one of the causes of action specified in the last section exists against the defendant. If the action is to recover damages for breach of contract, the affidavit must show that the plaintiff is entitled to recover a su in stated therein, over and above all counterclaims known to him.” The plaintiff failed to show to the court a fact which the statute says that he must show to entitle him to the warrant, and upon the affidavit presented he was not entitled to a warrant, and the court below should have vacated it.

It follows that the order appealed from must be reversed, with ten dollars costs and disbursements, and the motion to vacate the warrant of attachment granted, with ten dollars costs.

Patterson, P. J., Ladghlin, Clarke and Houghton, JJ., concurred.

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