Golden Gate Co. v. Jackson
New York Supreme Court
.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.
1Opinion of the CourtBarrett, 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…
2Cases cited2 opinions
- Bement v. SmithNew York Supreme Court · 1836
- Billings v. VanderbeckNew York Supreme Court · 1857
3Cited by4 opinions
- Thorn v. AlvordNew York Supreme Court · 1900
- Nicholson v. PastonSuperior Court of Buffalo · 1890
- Smith v. SwensonNew York Supreme Court · 1899
- Nicholson v. PastonThe Superior Court of New York City · 1890