
    GOLDEN GATE CO. v. JACKSON.
    
      N. Y. Supreme Ct., Special Term, First Department,
    
    
      May, 1884
    Action on Sale for Pbice.—Attachment, Requisites of Procedure.
    To sustain an attachment in an action on contract, the specific sum due must be established by proof, not merely averred. Hence, if plaintiff by adopting the wrong measure of damages claims too much, the attachment must be vacated.
    Where the plaintiff stated his cause of action as for the seller’s breach of agreement to take and pay for goods sold to him, and without any indication that the goods were to be manufactured for the purpose of the contract,—Held, that as he claimed damages in the amount of the contract price instead of claiming the difference between the contract and the market price, his attachment could not be sustained.
    .Motion to vacate attachment.
    Plaintiff sued on a contract to sell and deliver machines to the defendant, on the defendant’s failure to receive and pay for the articles and obtained an attachment against defendant’s property as a provisional remedy under the Code of Civil Procedure.
   Barrett, J.

The point is well taken that the damages are not liquidated by the affidavit. An attachment cannot be reduced, consequently a general averment of damage, as in a complaint, will not do. The specific sum must be established by proof, not merely averred.

Here the plaintiff sues for the contract price, claiming that as his damage. But such is not his damage. His damage is the difference between the contract and the market price, of the property at the time for delivery (Billings v. Vanderbeck, 23 Barb. 546 ; Davis v. Shieds, 24 Wend. 322; Sedg. on Dam. 260). This rule is not affected by the foreign cases cited by plaintiff. The case of Bement v. Smith (15 Wend. 493) was explained in Billings v. Vanderbeck, &c. {supra) as applicable to work and labor, as where a machine is manufactured for the vendor.

But here it is not averred that the machines were to be manufactured for defendant. The affidavit specifies only an agreement to sell and deliver, non constat, but from an existing stock of machines. It is not necessary, therefore, to consider the other points, as, for the reasons given, the plaintiff has not shown by affidavit that he is entitled to recover the sum stated.

Motion granted, with costs.  