Opinion
October 21, 1910.
Mortimer Fishel, for the appellant.
David Bernstein, for the respondent.
Appeal from order denying motion to vacate an attachment. The plaintiff's cause of action, as set forth in the affidavit upon which the attachment was based, consists of several items of damage resulting from defendant's refusal to accept merchandise which it had purchased from plaintiff, and also of several items of moneys advanced for account of defendant at its special instance and request. The objections urged by appellant are: First. That the allegations respecting the damages suffered by reason of the refusal to accept the merchandise are insufficient.
Second. That the allegations respecting the claim for moneys expended are insufficient.
Third. That the allegations as to defendant's non-residence are insufficient. The last two objections are untenable, but the first objection is well founded. The damages claimed for the non-acceptance of the merchandise are unliquidated and consist of the difference between the contract price and the market price of the goods at the time and place that the defendant refused to accept them. The rule is that in case of a claim for unliquidated damages the facts must be alleged from which the court can estimate, with reasonable approximation, the amount of plaintiff's damage. In a case like the present those facts are the contract price (which is stated), and the market price, which is not stated. The affidavit, therefore, lacks a positive statement of one of the essential factors necessary to a determination of the plaintiff's damage. The affidavit states in round figures what the plaintiff's damage is as he claims it, and we are urged to argue backwards from this that the market value must have been such as, when compared with the contract price, would have produced the loss stated. This we cannot do, for it would amount only to accepting plaintiff's estimate of his loss, without any statement of facts by which to verify it. It appears, therefore, that the plaintiff has united in his affidavit several causes of action, some of which are stated with sufficient precision to sustain the attachment, and some of which are not so stated. The motion to vacate the attachment in toto was, therefore, properly denied and must be affirmed, with ten dollars costs and disbursements, and without prejudice to a motion by defendant to reduce the amount to be secured by the attachment to a sum covering the alleged advances.
INGRAHAM, P.J., McLAUGHLIN, LAUGHLIN and CLARKE, JJ., concurred.
Order affirmed, with ten dollars costs and disbursements, without prejudice to a motion by defendant to reduce amount to be secured by attachment to a sum covering the alleged advances.