
    (21 Misc. Rep. 166.)
    ROMEO v. GARAFOLO.
    (Supreme Court, Special Term, New York County.
    August, 1897.)
    1. Sales—Warranty.
    Where there is a warranty in an executory contract oí sale, the seller may retain the goods and recover on the warranty for defects in their quality.
    2. Attachment—Sufficiency of Affidavit—Damages.
    An affidavit showing that plaintiff is entitled to nominal damages is not sufficient to authorize the issuance of an attachment in view of Code Civ. Proc. § 636, requiring the affidavit for attachment to show that plaintiff is entitled to recover a sum stated therein.
    3. Same—Amount.
    Plaintiff’s averments that he notified defendant that the goods delivered by him under an executory contract of sale were defective, and that they were held for his benefit, and that plaintiff thereafter sold the goods for $379.55 less than the cash he had advanced to defendant, and that he was damaged in the sum of $1,772.55, will authorize an attachment for $379.55 only.
    Attachment by Francesco Borneo against Alfonso Garafolo. Defendant moves to vacate the attachment. Modified.
    E. Baldwin, for plaintiff.
    Esek Cowen, for defendant.
   RUSSELL, J.

The motion to vacate the attachment against the property is based upon the want of a sufficient cause of action and a sufficient statement of facts showing the amount of the indebtedness, and is made upon the papers upon which the attachment was granted. The action is .brought to recover damages upon an executory sale of paste by the defendant Garafolo, at Gragnano, Italy, to the plaintiff, Borneo, who does business in the city of New York. The place of delivery was at Naples, but the place of destination was New York City. The goods not complying with the written agreement as to quality, as the complaint avers, they were rejected, and the defendant notified that they were held for Ids benefit; but under an assumed right similar to that of a vendor in case of nonpayment of goods agreed to be sold and delivered the plaintiff caused the paste to be sold, and realized for the same upwards of $3,000, or sufficient to indemnify him for the drafts he had paid for the goods in anticipation of their receipt, except for the sum of $379.55. Upon the facts so stated it would seem that the cause of action was upon a rejection of goods agreed to be delivered upon an executory sale on which the title did not actually pass to the plaintiff; but his assumption of ownership and sale of the goods is inconsistent with that theory, and so his action could not stand after he had deliberately assumed ownership of the goods, having inspected them, and ascertained the defects in their quality. On the argument of this-motion, therefore, and in the brief submitted since, the counsel for the plaintiff stands solely upon the warranty, and it is possible that sufficient facts are averred to justify his giving proof upon such a cause of action. Where there is a warranty in an executory contract of sale, it is clear that the vendee may retain the goods, and rely upon the terms of the warranty. Canning Co. v. Metzger, 118 N. Y. 260, 23 N. E. 372; Kent v. Friedman, 101 N. Y. 616, 3 N. E. 905; Day v. Pool, 52 N. Y. 416. See, also, Bank v. Alberger, 78 N. Y. 258. The affidavit and the complaint therefore made out a cause-of action for at least nominal damages. But to justify the harsh process of attachment something more is required. The plaintiff' must show by affidavit that he is entitled to recover the sum stated therein over and above all counterclaims known to him. Code Civ.. Proc. § 636. The reason of this is obvious. The amount due should be stated as near as mav be with precision, so that a process which seizes property before an adjudication of the right of recovery may be used only to hold sufficient to satisfy the alleged claim and expenses. In the present case that rule has been ignored. The affidavit and complaint both state a specific sum as due, but only by the averment that the plaintiff has sustained damages to that amount, without giving any facts from which such a conclusion could, be reached. Yo statement is made as to what the paste was worth either at the place of delivery or that of destination, or what it would have been worth had it been as represented, or other elements-of proof averred by which a conclusion as to amount could be reached, or at least the amount claimed in the affidavit and the amount stated in the warrant of attachment. For this reason the-attachment would, in my judgment, be fatally defective, as based upon insufficient proof, but for the detailed statement in the complaint,, made at a time when the plaintiff’s attorney might have preferred to base his cause of action upon an alleged rejection of the goods. The complaint has specifically stated the amount of the payments and the amount the goods realized for the plaintiff upon the sálewhich he made, leaving the difference of $379.55. As the sale to the plaintiff, and presumably his sales also to others, were in the usual course of business, the amounts realized may be some proof of the-value of the goods as agreed to be and as they actually were. Upon that proof there might be a recovery for the sum named, and the-question arises whether, upon facts showing a right of recovery to-that amount, the warrant of attachment can be sustained for. such a sum where it directs the sheriff to attach and safely keep sufficient property to satisfv a demand of $1,772.55, with costs and expenses, or whether the attachment should be entirely set aside. I have-determined that the former course can be adopted, because the error-consisted, not in issuing an attachment at all, but in issuing one to-secure too large a sum. The order will therefore be that the attachment be amended and modified, substituting the smaller sum for the-larger one in the statement of the claim and-of the amount which-the sheriff is required to provide for by the attachment.

Ordered accordingly.  