John D. Elwell and Company, Respondent, v. Acme Portland Cement Company, Appellant

John D. Elwell and Company, Respondent, v. Acme Portland Cement Company, Appellant. First Department, December 20, 1912. Attachment — motion to vacate attachment — laches — sufficiency of complaint — when amount of attachment should be reduced.' The court will consider- a defendant’s motion to vacate or modify an attachment, although the motion be long delayed if the plaintiff has not been prejudiced thereby. On such motion the court will not examine the complaint as upon trial or on demurrer or as on a motion to dismiss and will not pass upon defendant’s objection that it states no cause of action. Where an attachment has been issued in an action to recover damages caused by the fact that the defendant prevented the plaintiff from carrying out his contract and to recover profits which might have been earned, the latter being unliquidated, the amount of the attachment should be reduced so as to cover only the damages positively alleged by the plaintiff, if no facts are stated from which the court can determine the possible profits. Appeal by the defendant, the Acme Portland Cement 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 16th day of April, 1912, denying the defendant’s motion to vacate a warrant of attachment. Friend Hoar, for the appellant. Martin Conboy, for the respondent. [MAJORITY — Scott, J.:] Scott, J.: Although the defendant has long delayed its motion to vacate or modify the attachment, it does not appear that plain - tiff has been prejudiced thereby. It is not the custom on' motions like the present to examine a complaint with the same critical care that is required when its sufficiency is called in question upon a trial, or by a demurrer or a motion to dismiss. We do not, therefore, pass upon defendant’s objection that the complaint states no cause of action. What plaintiff apparently seeks to recover is the damages which it claims to have suffered because defendant, by its acts, has prevented the carrying out of a contract between plaintiff and defendant, and thus has caused plaintiff to incur expense, without permitting it to earn the profits which might have been earned if the contract had been carried out. These damages are unliquidated, at least so far as probable profits are concerned, and the affidavit upon which the attachment was granted does not state facts from which the court could determine whether any profits would have been earned, and, if so, how much they would have amounted to. The only positive allegations of damages are that plaintiff has already expended $12,250 on account of the contract, and has incurred obligations to others amounting to $21,000. These sums amount to $33,250, which is all that the attachment should have been issued for. The order denying the motion to vacate the attachment and for further relief must, therefore, be reversed, and the motion granted to the extent of reducing the amount to $33,250, without costs in this court to either party. Ingraham, P. J., Clarke and Miller, JJ., concurred; Laughlin, J., concurred in result. Order reversed and motion granted to the extent stated in opinion, without costs. Order to be settled on notice.