Thorington v. . Merrick

Per Ouriarn.

The action here is in equity, and from the facts set forth in the affidavit the plaintiffs are only entitled to a judgment that the defendants hold the pine lands, therein mentioned, in trust for the plaintiffs, and that they convey the same to the plaintiffs, and that an accounting of their transactions be taken as trustees for the plaintiffs, and that they pay-over the sum found due to them upon such accounting.

It is manifest that in such a case an attachment will not lie, within the provisions of section 635 of the Code of Civil Procedure. .We are also of the opinion that the affidavit was insufficient, inasmuch as it did not state that a specific sum was due, over and above all counter-claims known to the plaintiffs, in accordance with the provisions of section 636 of the Code of Civil Procedure. It was upon this ground, as appears from the opinion, that the General Term affirmed the order vacating the attachment. The affidavit, on its face, does not show that the plaintiffs are entitled to more than nominal damages. It places no value upon the real estate mentioned therein, and for which the plaintiffs are called upon to. account, but it simply alleges that it was of great value. It sets forth “ that the amount of plaintiffs’ claim in said action is, to-wit: $10,-000, or other larger sum, with interest from the 1st day of January, 1883, over and above all discounts and set-offs.” The value of the property is the basis upon which the amount of the attachment is fixed, and this is, as we have seen, not specifically stated. The facts stated do not show that the plaintiffs are entitled to recover the sum named, or any sum whatever, and it is not alleged in the affidavit that they are entitled to recover any sum. It may also be observed that it was discretionary with the courts below, in view of the facts stated in the affidavit, to determine whether a case was made out for an attachment, and as the order of t'he Special Term and the order appealed from do not state the ground upon which the attachment was vacated, the decision may he upheld upon this ground.

The appeal should he dismissed.

All concur.

Appeal dismissed.