Wessels v. Boettcher

23 N.Y.S. 480, 69 Hun 306, 76 N.Y. Sup. Ct. 306, 53 N.Y. St. Rep. 313

Opinion

PER CURIAM.

It is necessary, in an affidavit to obtain an •attachment, that the plaintiff should set out in such affidavit a .good cause of action, unless a complaint accompanying the summons is made a part thereof, in which complaint a good cause of -action is set forth. In the case at bar the cause of action at-1 empted to be set out clearly does not state facts sufficient to constitute a cause of action. There is no allegation except that of an account current. It is true that the items of such account current are stated to consist of merchandise and money advanced, but how much merchandise, what its value was, or how such value was arrived at, or upon what basis the plaintiffs claim a recovery, are not even hinted at. Under such circumstances, no recovery can be had upon a cause of action set out in this manner. Therefore, there being before the court no proof of the existence of a cause of action, no attachment should have been issued. The order appealed from should be reversed, with $10 costs and disbursements, and the attachment vacated, with $10 costs and disbursements.