Downing v. Nelson

49 Misc. 446, 97 N.Y.S. 1005

• Court: Appellate Terms of the Supreme Court of New York
• Decided: February 15, 1906
• Status: Published

Opinion

Giegerich, J.

The defendant .moved to vacate the attachment issued in favor of the plaintiff upon the ground that the papers upon which the same was granted were “defective and insufficient.” The “ papers ” referred to was an affidavit, which referred to the complaint and made it a part of such affidavit and which set forth, in substance, that the plaintiff, by reason of the false and fraudulent representations made to her by the defendant, as to the condition of the furnace, ranges and plumbing in certain premises, was induced to and did enter into a lease therefor, for the term of one year from the 1st day of January, 1904, at the yearly rental of $2,700; that, in consequence of said misrepresentations and as damages caused thereby, the plaintiff was compelled to and did expend the sum of $236.11 to put the furnace, range and plumbing in fit shape for use, the sum of $36 for a caretaker, $32.50 for coal while making said repairs, $400 for" two months’ rent, during which time the necessary repairs were being made, and $400 for loss of business and profits.

Without passing upon the question as to whether or not the plaintiff can maintain an action under the facts set forth in the complaint (Schermerhorn v. Gouge, 13 Abb. Pr. 315), it is clear that the complaint does not set forth any legal measure of damages. Heyward v. Willmarth, 87 App. Div. 123; Thomson-Houston Electric Co. v. Durant Land Improvement Co., 144 N. Y. 34.

The motion to vacate the attachment should, therefore, have been granted.

Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.

Scott and Gbeenbatjm, JJ., concur.

Order reversed, with ten dollars costs and disbursements.