Ketelsen v. Nickelsen

238 A.D. 843

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 15, 1933
• Status: Published

Opinion

Order denying motion to vacate attachment affirmed, with ten dollars costs and disbursements. Our construction of the original complaint is that the agreement of the parties that the sale should be for not less than $12,000 was breached by defendant’s sale for $6,000, and that plaintiff claims to be entitled to the one-half difference between that for which the business was agreed to be sold and that for which it was sold. The prayer for relief may be ignored. ( Traub v. Arrow Manufacturing Corporation, 207 App. Div. 292, 296; Bloom v. Gelb, 227 id. 619.) In the view that we take of this complaint, there was no change in the cause of action by the service of the amended complaint, although had the original complaint failed to give the court jurisdiction upon which to base an attachment we would not have permitted a change of the cause of action by the service of an amended complaint which alone would give the essential jurisdiction. Kapper, Carswell and Seudder, JJ., concur; Lazansky, P. J., and Tompkins, J., dissent upon the ground that the complaint does not state a cause of action for a sum of money only.