¶1The motion to vacate the attachment against the property is based upon the want of a sufficient canse of action, and a sufficient statement of facts showing the amount of the indebtedness, and is made upon the papers upon which the attachment was granted. The action is brought to recover damages upon an executory sale of paste by the defendant G.arafolo, at Gragnano, Italy, to the plaintiff, Romeo, who does business in the city of New York. The place of delivery was at Naples but the place of destination was New York city. The goods, not complying with the written agreement as to quality, as the complaint avers, they were rejected and the defendant notified that they were held for his benefit; but under an assumedaight similar to that of a vendor in case of nonpayment of goads agreed to be sold and delivered, the plaintiff caused the paste to be sold, and realized for the same upwards of $3,000, or sufficient to indemnify -him for the drafts he had paid.for the goods in anticipation of their receipt, except for the sum of $379.55.
¶2Upon the facts so stated it would seem that the cause of action was upon a rejection of goods agreed to be delivered upon an executory sale on which the title did not actually pass to the plaintiff; but his assumption of ownership and sale of the goods is inconsistent with that theory, and so his action could not stand after he had deliberately assumed ownership of the goods^ having inspected them and ascertained the defects in their quality.
¶3On the argument of this motion, therefore, and in the brief submitted since, the counsel for the plaintiff stands solely upon the warranty, and it is possible that sufficient facts are averred to justify his giving proof upon such a cause of action. Where there is a warranty in an executory contract of sale it is clear that the vendee may retain the goods and rely upon the terms of the warranty. Fairbank Canning Co. v. Metzger, 118 N. Y. 260; Kent v. Friedman, 101 id. 616; Day v. Pool, 52 id. 416; see also Steuben County Bank v. Alberger, 78 id. 258.
¶4The affidavit and the complaint, therefore, made out a cause of action for at least nominal damages. But to justify the harsh process of attachment something more is required. The plaintiff must show by affidavit that he is entitled to' recover the sum stated therein over and above all counterclaims known to him. Code Civ. Pro., § 636. The reason of this is obvious. The amount due should be stated as near as may be with precision so that a process which seizes property before an adjudication of the right of *168recovery maybe used only to hold sufficient to satisfy the alleged claim and expenses.
¶5In the present case that rule has been ignored. The affidavit and complaint both state a Specific sum as due, but only by the •averment that the plaintiff has sustained damages to that amount without giving. any facts from which such a conclusion ■ could be reached: So statement is made as to what the paste was worth either at the place of delivery or that of destination, or what it would have been worth had it been as represented, or other elements of proof averred by which a conclusion as to amount could be reached, or at least the amount claimed in the affidavit and the amount stated in the warrant of attachment. For this reason the attachment would, in my judgment, be fatally defective as based upon insufficient proof but for the detailed statement in the complaint, made at a time when the plaintiff’s attorney might have preferred to base hi¡3 cause of action upon an alleged rejection of the goods. The complaint has specifically stated the amount of the payments and the amount the goods realized for the plaintiff upon the sale which .he made, leaving the difference of' $379.55. As the sale to the plaintiff, and presumably his sales also to others were in the usual course of business, the, amounts realized may be -some proof of the value of the goods as agreed to be. and as they actually wbre. Upon that proof there might be a recovery for the sum named, and the question arises whether, upon facts showing a right of recovery to that amount, the warrant of attachment can be sustained for such a sum where it directs the sheriff to attach and safely keep sufficient property to satisfy a demand of $1,772.55, with costs and expenses, or whether the attachment should be entirely set aside.
¶6I have deternrined that the former course can be adopted because the error consisted not in issuing an attachment at all, but in issuing one to secure too large a suni. The order will, therefore,. be that thé attachment be amended and modified, substituting the Smaller sum for the larger one in the-statement- of. the claim and of the amount which the sheriff is required to provide for by the attachment.
¶7Ordered accordingly.