Tom Frusher, Respondent, v. Vacuum Dyeing Machine Company, Appellant

Tom Frusher, Respondent, v. Vacuum Dyeing Machine Company, Appellant. First Department, December 1, 1911. Appeal from order—record—attachment — sufficiency of moving • papers. Where an attack upon an order denying a motion to vacate a warrant of attachment is based solely upon the insufficiency Of the moving papers', the omission of the warrant iteelf from the papers on appeal does not affect the appellant’s right to be heard. A warrant of attachment granted in an action by a selling agent against his principal to recover commissions will be vacated where the commissions to which the agent was entitled under his Contract varied with the size of the machines sold by him, and, instead of specifying the number of each size sold, he merely alleges that he sold a total number, upon which he was entitled to commissions amounting to a certain sum. In order to justify an attachment in such action facts must be stated from which the court can judicially determine the amount due; the conclusions of the moving party are insufficient. Appeal by the defendant, the Vacuum Dyeing Machine Company, from an order ■ of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 13th day of October, 1911, denying the defendant’s motion to vacate an attachment. Charles Trosk, for the appellant. George R. Bristor, for the respondent. [MAJORITY — Miller, J.:] Miller, J.: The warrant of attachment is not a part of the papers on appeal. But as the attack is confined solely to the sufficiency of the papers upon which it was granted, we do not deem the omission fatal to the appellant’s right to be heard. The plaintiff was employed by the defendant as selling agent for certain vacuum dyeing machines, manufactured by the defendant, under an agreement pursuant to which he was to receive $150 commission for each large machine sold for $1,475, and $100 commission for each small machine sold for $950. In his affidavit to obtain the warrant of attachment, he states that he sold, and the defendant was paid for, sixty-eight machines, upon which he “ was duly'entitled as commissions under said contract to the sum of $10,150; ” that he became entitled under the contract to the further sum of $332.37 for expenses, making a total of $10,482.37, and that there was paid to him “upon said amount, only the sum of $8,100.” It is impossible for the court to determine, unless the plaintiff’s conclusion be accepted, that he is entitled to anything in excess of the sum already paid him. The failure to state the number of large and the number of small machines sold was doubtless an oversight, but it was a fatal omission, as facts must be stated from which the court can judicially determine the amount due, and the conclusions of the party, moving for the attachment, cannot be accepted, as proof. The order must be reversed, with ten dollars costs and disbursements, and the motion granted, with ten dollars costs. Ingraham, P. J., Laughlin, Scott and Dowling, JJ., concurred. Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.