Prentiss v. Greene , 193 A.D. 672 ( 1920 )

Lattghlin, J.:

One of the points made by the appellants is that although the defendant corporation is a foreign corporation, it is immune from attachment for the reason that it has been duly authorized to transact business here. The point is untenable, for by section 636, subdivision 2, of the Code of Civil Procedure an attachment against a foreign corporation is expressly authorized, and a corporation has but one domicile, which is in the sovereignty under which it is incorporated. (Shepard & Morse Lumber Co. v. Burleigh, 27 App. Div. 99.)

Another point made by the appellants is that no damages other than nominal damages are shown, and that, we deem well taken. Assuming, without deciding, that the plaintiff has sufficiently shown a breach of contract, he has not shown any agreement with respect to the value of his services or any basis for a recovery therefor on a quantum meruit. His counsel concedes that the only basis shown for a recovery of damages is the value of the 52,500 shares of the common stock, without par value, in the company to be. reorganized or incorporated, which he claims was to be and should have been issued to him. He does not even show that the existing corporation, the capital stock of which he controlled when the contract was made and which he has since acquired, had ever transacted any business, or that it or the corporation to be organized could have transacted business profitably. He, therefore, fails to show that it is certain the stock would have had any market value. It is doubtful whether the facts shown would entitle him to recover more than nominal damages within the well-settled rule that where it is certain that damages have resulted from a breach of a contract and the only uncertainty is the amount, the jury, on the best evidence of which the case is susceptible, may determine and award damages. (Wooldridge v. Shea, 186 App. Div. 705; Cramer v. Grand Rapids Show Case Co., 223 N. Y. 63; Industrial & General Trust, Ltd., v. Tod, 180 id. 215; Dyer v. Rich, 1 Mete. 180; Crichfield v. Julia, 147 Fed. Rep. 65; Sistare v. Olcott, 15 N. Y. St. Repr. 248.) We do not, however, express an opinion as to whether the plaintiff may be entitled to have a jury award substantial damages, for the point we have to decide is not with respect to his common-law right to recover damages, but whether he has presented evidence of damages of sufficient certainty and definiteness to entitle him to the warrant of attachment for the amount in which it has been issued, or for a lesser amount to which it might be reduced. A warrant of attachment is not a common-law right but is a statutory provisional remedy and authorizes the taking of property before judgment, and where, as here, it is sought upon an unliquidated claim, it must clearly appear by prima facie evidence at least that the plaintiff is entitled to recover the amount of damages which he demands. (Code Civ. Proc. § 636; Delafield v. Armsby Co., 62 App. Div. 262; Barbrick v. Carrero, 184 id. 160; Calmon Asbestos & B. Works v. Asbest- Und-Gummiwerke, 141 id. 198;Southwellv. Kingsland, 85 id. 384; Chazy Marble Lime Co. v. Deely, 88 id. 150; James v. Signed, 60 id. 75; Haskell v. Osborn, 33 id. 127. See, also¿ Fine v. Lyons, 141 N. Y. Supp. 294; Farquhar v. Wisconsin Condensed Milk Co., 30 Misc. Rep. 270; Mallon v. Rothschild, 38 id. 8; Story v. Arthur, 35 id. 244.) In the case at bar not only is the claim unliquidated, but there is no basis for any damages excepting opinion evidence which is uncertain and problematical and upon which a jury might award only nominal damages, and yet the warrant of attachment is for the amount which the affiant, Waterhouse, thinks would be the value, of the stock, and his affidavit shows that his opinion is a mere conjecture based upon no fact tending to sustain it.

It is well settled in this jurisdiction that the unliquidated damages recoverable for a breach of contract must be reasonably certain and definite in amount and not speculative or problematical or resting on conjecture. (Cramer v. Grand Rapids Show Case Co., supra; Bobrick v. Mackenzie, 192 App. Div. 594; Broadway Photoplay Co. v. World Film Corp., 225 N. Y. 109; Witherbee v. Meyer, 155 id. 449; Maurer v. Grimm, 84 App. Div. 575.) As already observed, it is even more important that the damages should be shown with reasonable certainty to justify the taking of the defendant’s property in advance of an adjudication. We are of opinion that the plaintiff has not shown that the stock which he claims should have been issued to- him would have had any substantial market value.

It follows that the order should be reversed, with ten dollars costs and disbursements, and the motion to vacate granted, with ten dollars costs.

Clarke, P. J., Dowling, Smith and Greenbattm, JJ., concur.

Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.