Austrian Bentwood Furniture Co. v. Wright

Leventritt, J. Appeal from an order denying a motion to vacate a warrant of attachment. The ground of the attachment is the nonresidence of 'the defendant and the cause [617] of action is injury, to the plaintiff’s furniture occasioned by an overflow of water, ascribed to the defendant’s negligence. The attachment is attacked for the insufficiency of the allegations respecting the defendant’s nonresidence and the extent of the damage sustained. The former is amply supported. Even if the two affidavits, which are based on information and belief, be rejected, notwithstanding that the sources of the information and the grounds of belief are set forth in reliable detail, the third affidavit made on positive knowledge would alone satisfy all requirements. A more' serious question arises with reference to the amount of damage which the plaintiff claims to have suffered. Upon this subject there is nothing in the complaint except the allegations that the overflow caused “ the said furniture to he damaged, spoiled and made unfit for use or sale by the plaintiff company ” and “ through the negligence of the defendant as above set forth the plaintiff company has suffered damage in the sum of six hundred dollars.” The only other reference, in the papers on attachment, to the cause of action and extent of damage appears in the affidavit of the plaintiff’s secretary and is couched in this language: “ That the said water flowed in such quantities, and for such a length of time, on the furniture of the plaintiff as to make a large quantity of said furniture unfit for use and sale, and to seriously injure and damage the same, and that by reason of said negligence of the defendant, the plaintiff company has been damaged in the sum of six hundred dollars.” There is no indication anywhere how that damage is computed or arrived at. Neither the valup of the furniture before nor after the overflow is given. The court is in nowise apprised of the method by which the plaintiff fixed the amount claimed and, for aught that appears, it is an arbitrary sum. If the damages are merely nominal, attachment will not lie; if substantial, they1 are ascertainable and should be set forth by affidavit to satisfy the court within the requirements of the Code of Civil Procedure. “ Where the damages are -unliquidated, it is necessary to set out the facts which the plaintiff claims prove the damage, in order that the court may determine whether any damage has been sustained.” James v. [618] Signell, 60 App. Div. 75, 76. The insufficient allegation of damage is fatal to the maintenance of the attachment. There is no merit in the plaintiff’s point that, even if the defendant’s contention he well founded, she cannot prevail as her motion papers are insufficient by reason of the omission therefrom, of allegations required by rule 37 of the General Rules of Practice. The presentation of that objection upon the hearing of the motion would have called for its denial (Cole v. Smith, 84 App. Div. 500), but the record does not disclose that the objection was then taken and, as it cannot be successfully raised for the first time on appeal, it can receive no consideration. Order reversed, with costs and disbursements of appeal and attachment vacated with ten dollars’ costs. Fbeebman, P. J., and Greenbaum, J., concur. Order reversed, with costs and disbursements of appeal and attachment vacated, with ten dollars’ costs.