Dexter & Carpenter, Inc. v. Lake & Export Coal Corp.

Laughlin, J.:

The warrant of attachment was issued on the ground that the defendant is a foreign corporation and the motion to vacate it was made on the original papers. The plaintiff, claiming that the objections to the sufficiency of the papers on which the warrant of attachment was granted related to defects or insufficiencies curable by supplemental affidavits under' the provisions of section 768 of the Code of Civil Procedure, and that the defects or insufficiencies could be cured or supplied without prejudice to any intervening rights, on the return of the motion asked leave pursuant to those provisions to serve and file affidavits for that purpose. The court thereupon granted the application and adjourned the hearing on the motion; and on the adjourned day the court ordered that the affidavits be filed but that they be not considered' by the court either in deciding the motion or in determining whether the defects or insufficiencies in the original papers would be cured or supplied thereby, and vacated the warrant of attachment on the ground that the papers on which it was granted failed to show a contract between the plaintiff and the defendant or that the defendant breached it or that the plaintiff had suffered any damage by a breach thereof, and further ordered that the sheriff release the property to the defendant without charge and that plaintiff pay the poundage fee and all other fees in connection with the attachment.

The original papers on which the warrant of attachment was issued failed to comply with the requirement that on an application for a warrant of attachment it is not sufficient to show as by a pleading a cause of action for damages for breach of "a contract, but that the evidentiary facts showing the contract, the breach and basis for the computation of the damages must be presented. (Delafield v. Armsby Co., 62 App. Div. 262; Hart v. Page Mfg. Co., 187 id. 296; Makepeace v. Dilltown Smokeless Coal Co., 179 id. 60; Id. 662.) The reason for this requirement is that under the provisional remedy, the defendant’s property is taken from his possession in advance of the trial of the issues, and to the end that there may be no injustice to him, the evidentiary facts are required to be presented so that the court may see that the plaintiff at least has a prima fade cause of action for a recovery of damages to the extent claimed; but this requirement does not go to the jurisdiction of the court to grant the warrant of attachment, for it is not a statutory requirement and the jurisdiction of the court in such matters is prescribed by statute. Where the moving papers are insufficient to confer jurisdiction on the court to issue the warrant of attachment, a jurisdictional defect may not be cured or supplied by granting leave to the plaintiff to file affidavits nunc pro tunc pursuant to the provisions of said section 768, but any other omission or defect, irregularity or insufficiency may be so remedied. (Kahn v. Hollander, No. 1, 140 App. Div. 492. See, also, Colcord v. Banco de Tamaulipas, 191 id. 94.) If, therefore, the court did • not, by the original papers, acquire jurisdiction to issue the warrant of attachment, the writ was void and life cannot be given to it by filing affidavits nunc pro tunc. The warrant was issued on the summons, complaint and an affidavit made by the vice-president and treasurer of the plaintiff.

The complaint, so far as here material, shows that the defendant is a West Virginia corporation, doing business and having an office for the regular transaction of business in the city and county of New York; that on the 17th of May, 1920, at the city of New York, plaintiff and defendant “ entered into an agreement whereby it was mutually agreed between them that the defendant should sell and deliver to the plaintiff at Hampton Roads, Virginia, on or about the 25th day of May, 1920, 5,000 gross tons of Pool No. 6 Kanawha Splint Coal, and that the plaintiff should accept the same from the defendant and pay therefor the sum of $9.25 per gross ton upon the delivery thereof; ” that on or about the 25th of May, 1920, plaintiff was ready, willing and able at Hampton Roads, Va., to accept and pay for the coal pursuant to said agreement and requested the defendant to deliver the same to it, but that the defendant has neglected and refused to deliver to the plaintiff the coal or any part thereof “ to the damage of the plaintiff in the sum of $16,250,” for which amount with interest from May 25, 1920, judgment was demanded. The complaint was verified by the vice-president and treasurer of the plaintiff in the usual form, to the effect that the allegations thereof are true to his own knowledge, except as to the matters therein stated to be alleged on information and belief and as to those matters he believed it to be true. The only allegations of the complaint made on information and belief are those with respect to the defendant’s being a foreign corporation and transacting business here. It thus appears that the making of the contract, the readiness, willingness and ability of the plaintiff to perform, the breach by the defendant, and the damages, are positively stated on the actual knowledge of the plaintiff’s vice-president and treasurer. The affidavit made by him avers that the defendant is justly and truly indebted to the plaintiff in the sum specified in the complaint for damages for a breach of a contract other than a contract to marry, and that the contract was made in the State of New York between the plaintiff and the defendant, and that thereby the defendant agreed to sell and deliver to the plaintiff, at the time and place specified in the complaint, the quantity and kind of coal therein specified and the plaintiff agreed to accept the same and to pay therefor upon delivery at nine dollars and twenty-five cents per gross ton, and that the defendant has neglected and refused to deliver the coal to the plaintiff, and that the defendant is justly indebted to the plaintiff and that the deponent knows of his own knowledge that no counterclaim exists in behalf of the defendant against the plaintiff, and that the plaintiff has suffered actual damages in the amount specified; that the defendant is a foreign corporation organized and existing under the laws of West Virginia, as more fully appears by a letter from the Secretary of State of West Virginia to the plaintiff’s- attorneys under date of September 21,1920, a copy of which is annexed to the affidavit, and that the summons, which the affidavit shows has been issued, is also annexed to the affidavit, and the affiant further states that no other application for a warrant of attachment against the defendant's property has been made in the action.

I am of opinion that the papers on which the warrant of attachment was issued are free from jurisdictional defects. The jurisdictional requirements for the issuance of a warrant of attachment are prescribed in sections 635 and 636 of the Code of Civil Procedure. Said section 635 authorizes the issuance of such warrant of attachment in an action to recover a sum of money only as damages in a cause of action for a breach of contract, express or implied, other than a contract to marry. By said section 636, plaintiff is required to show by affidavit to the satisfaction of the judge granting the warrant that one of the causes of action specified in section 635 exists in favor of the plaintiff against the defendant; that if the action is to recover damages for breach of a contract, affidavits must show “ that the plaintiff is entitled to recover a sum stated therein, over and above all counterclaims known to him;” and that the defendant is either a foreign corporation or a nonresident of the State. Although neither the complaint nor the affidavit sets forth the contract or the facts in detail with respect to the making thereof, they both sufficiently charge by way of conclusions of fact the making and breach of the contract and the plaintiff's damages, to confer jurisdiction upon the justice to issue the warrant cl attachment. (Naebler v. Bernharth, 115 N. Y. 452; California S. & D Co. 223 Colcotd v. Banco de Tamaulipas, supra.)

If follows, iherelore, that the court erred in refusing to consider the supplemental affidavits. One of the supplemental affidavits was made by the vice-president and treasurer. It shows that the market price and value of the coal at the time and place of delivery was twelve dollars and fifty cents per gross ton. This was a strict compliance with the requirement that the facts showing the plaintiff’s damages be stated and it shows the damages in the precise amount for which a recovery is sought. Another affidavit made by one Paddock, who was employed by the plaintiff to buy and sell coal, sets forth the facts with respect to the making of the contract showing that it was verbally negotiated and confirmed in writing by an exchange of letters between the parties, copies of which were annexed to the affidavit. This correspondence shows a complete meeting of the minds of the parties with respect to the making of the contract as alleged in the complaint. His affidavit and copies of letters and telegrams annexed thereto and the affidavits of the plaintiff’s manager at Norfolk, Va., also show that at the time and place for performance the plaintiff was ready, willing and able to perform and that the defendant failed to deliver any of the coal and subsequently refused to make any delivery under the contract. The supplemental affidavits fully supply the necessary evidentiary facts and they should have been accepted by the court.

It follows that the order should be reversed, with ten dollars costs and disbursements, and the supplemental affidavits ordered received and filed nunc pro tunc as of the date of the issuance of the warrant of attachment, and that the warrant of attachment be reinstated and the motion to vacate it denied upon payment by plaintiff of ten dollars costs for leave to serve and file supplemental affidavits.

Dowling, Page and Greenbattm, JJ., concur; Merrell, J., dissents.