First Department, May, 1921. [Vol. 196 while holding that the affidavit upon which the attachment was based was fatally defective in not showing within the knowledge of the affiant or otherwise except by his mere statement that there was any contract or any default on defendant's part, held that the omission was one that could be cured by amendment, and extended to the plaintiff additional time within which to file such additional affidavits, the court holding the motion to vacate open for the purpose of enabling the plaintiff to supply the necessary proofs. Additional affidavits were filed by the plaintiff against the objection of the defendant, who took the position that that defect in the papers upon which the warrant of attachment was obtained was jurisdictional, and that the court was powerless to authorize the plaintiff to amend its application by filing additional affidavits. The court finally reconsidered its previous determination and granted the order appealed from granting defendant's motion to vacate the attachment on the original papers. The court, however, in a brief memorandum permitted the affidavits to be filed, but refused to permit them to be read in opposition to defendant's application. The chief controversy upon this appeal is as to whether the plaintiff was entitled to supply the additional affidavits in support of the attachment. In finally holding that the court could not read or consider in opposition to defendant's motion, the additional affidavits, the court based its decision upon another case entitled Gaunt v. Nemours Trading Corporation, which was decided by the same court concurrently with the decision of the motion vacating plaintiff's attachment. In a memorandum handed down by the court in the Gaunt case the court held that it was the rule in the First Judicial Department that where affidavits failed to set forth any facts from which the judge to whom application for the attachment was made might determine that a contract exists, that it has been breached and that damages have thereby arisen, no supporting affidavits may be offered on a motion to vacate on the papers. Such decision was upon the authority of Conklin v. Federal Trust Co. (176 App. Div. 572). The case thus relied upon by the court arose in this department, and in that case it was held: "The orders appealed from cannot be justified under section 768 of the Code of Civil Procedure, which permits the curing of technical defects or App. Div. 766] First Department, May, 1921. insufficiencies. This section cannot be used to cure defects which go to the jurisdiction of the court. Before the court can make an order in an action to cure defects in the proceedings it must obtain jurisdiction of the cause, and that has not been obtained in this case." Section 636 of the Code of Civil Procedure requires a party to show by affidavit, to entitle such party to a warrant of attachment, that one of the causes of action specified exists against the defendant. His failure so to do is a jurisdictional defect. Mr. Justice PAGE, in writing for this court in Colcord v. Banco de Tamaulipas (191 App. Div. 97), said: "The jurisdictional facts that must appear are, first, that the cause of action is one of those specified in section 635 of the Code of Civil Procedure; second, that the plaintiff is entitled to recover a sum stated in his affidavit over and above all counterclaims known to him; third, that the defendant is a foreign corporation." (Code Civ. Proc. § 636.) In Makepeace v. Dilltown Smokeless Coal Co. (179 App. Div. 60) Mr. Justice SMITH, writing the opinion of the court, at page 61, said: "The failure of the attachment papers, therefore, to show the existence of a cause of action in plaintiff against defendant requires that the order appealed from be reversed and the defendant's motion to vacate the attachment granted." An examination of the affidavit used upon the application for the warrant of attachment reveals that no fact is therein stated. Section 636 requires that application for a warrant of attachment must be supported by an affidavit setting forth evidentiary facts upon which the court may determine whether or not a cause of action entitling the plaintiff to the attachment sought in fact exists. Upon further appeal in Makepeace v. Dilltown Smokeless Coal Co. (179 App. Div. 662) Mr. Justice PAGE said (at p. 664): "The Albert R. Gibson who made this affidavit was manager of the sales department of the Sterling Coal Company. No copy of the alleged 'forms of contract' was annexed, so that there is nothing to support the allegation that such were the terms of the contract but the deponent's bare statement which is a conclusion of fact and not evidence. An affidavit in support of an attachment must contain First Department, May, 1921. [Vol. 196 evidence from which the court can determine that the ultimate facts stated in the pleadings can be substantiated. Thus, though the complaint as amended states a cause of action, the proof in support of it is still lacking, so that the same defect in the moving papers upon which the prior attachment was vacated now exists in the present moving papers.' The language of Mr. Justice PAGE is peculiarly applicable to the situation under consideration. The affidavits which were filed for the purpose of amending the original papers clearly show that the contract upon which the plaintiff depends was in writing and specified with great particularity as to when, where and in what manner the coal was to be delivered. Copies of the contract should have been annexed to the original affidavit so that the court might determine from the facts. shown by such contract whether a proper cause of action existed. As stated by Mr. Justice PAGE, the affidavit upon which the attachment was asked should contain evidence from which the court might determine that the conclusions stated in the complaint were supported by the facts. The Appellate Term in this department seems to have quite consistently followed the decision of this court in respect to the requirement that affidavits in support of attachment must contain evidentiary matter and not merely a statement of conclusions of law. In Nerenberg v. Keith (101 Misc. Rep. 551) it was said: "The warrant of attachment was improperly granted and should be vacated because the papers on which it was granted fail to show facts supporting the allegation of the complaint that plaintiff was ready to receive and pay for the goods. His allegation of that ultimate fact in his complaint is probably sufficient, so far as the complaint is concerned, but it was necessary that his affidavits should contain evidence from which the court can determine that that ultimate fact can be substantiated." And in Baff & Son, Inc., v. Heggie Co. (176 N. Y. Supp. 736) it was said: "Motion for reargument granted. The affidavit upon which the warrant of attachment was based is clearly insufficient, as it is a mere repetition of the conclusions of the complaint, without the statement of any facts as a basis for those conclusions." In Delafield v. Armsby Co. (62 App. Div. 262) Presiding Justice VAN BRUNT said (at p. 264): "The office of a com App. Div. 766] plaint is to allege conclusions of fact deduced from the evidence, whereas the office of an affidavit is to set out the evidence establishing these conclusions of fact." It further appears clearly that there is no proof as required by section 636 of the Code of Civil Procedure that the plaintiff is entitled to recover the damages claimed. (Delafield v. Armsby Co., 62 App. Div. 262; Haskell v. Osborn, 33 id. 127.) I am, therefore, of the opinion that the papers upon which the warrant of attachment was obtained were entirely insufficient, and that the defect being jurisdictional the plaintiff was properly denied the privilege of supplying additional affidavits by way of amendment, pursuant to the provisions of section 768 of the Code of Civil Procedure, which permits amendment of moving papers to cure mere technical defects or insufficiencies. The defect in the original papers in the case at bar was not a technical one, but was jurisdictional, and the court in granting the warrant of attachment acted without jurisdiction. It would, furthermore, seem there would be grave doubt whether the additional affidavits and exhibits with which the plaintiff sought to bolster up its application would have justified the issuing of the warrant of attachment or have shown that a cause of action upon contract against the defendant actually existed. Under the allegations of the complaint and the affidavit used upon the original application it appeared that the coal was to be delivered at Hampton Roads on or about May 25, 1920. The written correspondence between the parties and the order itself going to make up the contract show that the coal was to be loaded on board the steamship Astoria of 3,000 tons, and the steamship Kickapoo of 3,000 tons, and that shipment was to be made upon said two vessels. There is no allegation in the complaint or in the affidavits of evidentiary facts that the steamships mentioned or either of them were at Hampton Roads at the time specified ready to receive the coal mentioned in the complaint. It would seem to have been, upon a reading of the contract, a condition precedent that plaintiff should have the steamships at the point mentioned to receive the coal on the date provided, and it would seem to be necessary that the plaintiff should allege facts showing that the steamships specified were there at the time mentioned. There was no allegation in the com First Department, May, 1921. [Vol. 196 plaint that the plaintiff had duly performed all the conditions of the contract on his part to be performed, and we, therefore, have a failure to include either a general allegation of due performance of the contract on plaintiff's part or of any facts showing that the plaintiff had performed by having the vessels mentioned in readiness at the time specified. The additional papers disclose, however, the real reason for the failure to include one of said allegations, as it appears therefrom that on May twenty-sixth, or one day after the coal was to be delivered on board the two named steamships, the plaintiff nominated another steamship, to wit, the Franklin, which the plaintiff's treasurer wrote defendant on May 26, 1920, was then awaiting her cargo, but there is nothing to show that the defendant consented to change from the steamships Astoria and Kickapoo to the steamship Franklin or to change the date of performance to a later date. There is no allegation in the complaint setting forth a modification of the original contract between the parties, nor to show any right on plaintiff's part to substitute the Franklin for the two steamships mentioned in the contract. It does not appear from the papers offered offered by way of amendment that the plaintiff ever would be or was ready, able and willing to pay for the coal at Hampton Roads after May twenty-fifth if the defendant were required under the modified contract to deliver its coal to the steamship Franklin after such date. So that, even though all the facts had been before the court, as shown by the additional affidavits, it would have clearly appeared therefrom that the plaintiff had not only failed to allege, either generally or by averment of particular facts, performance of the conditions precedent on its part to be performed, but it would have appeared therefrom that the plaintiff had failed to carry out the condition precedent to have at Hampton Roads the steamships Astoria and Kickapoo between May 20 and May 25, 1920, to receive said coal. (Ziehen v. Smith, 148 N. Y. 558; Makepeace v. Dilltown Smokeless Coal Co., 179 App. Div. 662, 664.) The order appealed from also relieved the defendant from the payment to the sheriff of New York county of his poundage and fees for seizing the property upon the vacated attachment, and the order also provided that the plaintiff, appellant, |