67 Misc. 443 | N.Y. Sup. Ct. | 1910
Without considering a number of other points raised by the appeal, it suffices to point out that section 99 of the Municipal Court Act provides that the bond shall cover payment to the defendant only of “ any sum which the judgment awards to him against the plaintiff.” In this it differs from sections 57 and 76, whereby the bond is required to cover “ all damages which defendant may sustain by reason of ” the arrest and attachment, respectively. As the present plaintiff, who was defendant in replevin, was not indemnified against damages suffered, expenses incurred for counsel cannot be recovered.
In addition to this vital point, the only claim of the defendant in replevin against the plaintiff therein would be. for the return of the chattel or its value. In the case at bar, however, the defendant in replevin has undertaken to assign to the plaintiff at bar “ all my right, title and interest in and to a certain undertaking in replevin * * * together with full right to institute any and all actions for the recovery of damages by me sustained under said undertaking in replevin to the extent of $250.” The cause of action cannot be split up in this manner and recovery had in an action, unless all claimants are joined therein. McLean v. Fidelity & Deposit Co., 56 Mise. Bep. 623.
Judgment reversed and new trial ordered, with costs to appellant to abide event.