Fixel v. Tallman

116 N.Y.S. 639 | N.Y. App. Term. | 1909

PER CURIAM.

The defendant Charles A. Tallman brought an action against the Atlantic Rubber Manufacturing Company, and procured an attachment against said company on the ground that it was a foreign corporation, as to the merit of which ground there was no dispute, and upon the undertaking given to procure such attachment the defendants in the case at bar were sureties. The Atlantic Rubber Company procured an undertaking to discharge said attachment, upon which undertaking the United States Fidelity Company was the surety, and for which bond the said Atlantic Rubber Company paid a premium of $10. No motion was made to vacate the attachment, for the reason that the compnay was in fact, as above stated, a foreign corporation, and a motion to vacate would have been useless. In order, therefore, to dispose of the attachment, it was necessary to await the result of the trial. Upon the trial, the trial judge, after hearing the evidence of both sides, stated that he would not undertake to decide the issues, and, on motion of the attorney for said Tallman, a second trial was ordered, and the case sent to another justice. Upon a second trial, the justice, having heard the evidence of both sides, reserved his decision and directed the respective counsel to submit briefs, which was done, and subsequently the court rendered his decision, dismissing the complaint on the merits. The costs of that trial have been paid; but said Tallman, the plaintiff therein, appealed to the Appellate Term of the Supreme Court from said judgment, but this appeal was finally dismissed. This action at bar is brought by the assignee of the Atlantic Rubber Manufacturing Company against the sureties on the undertaking givén by Tallman to procure the attachment above mentioned, which attachment necessarily fell with the judgment in favor of the Atlantic Rubber Manufacturing Company against Tallman, dismissing the complaint on the merits, with costs. The court allowed plaintiff as damages arising from said attachment $10 damages and $4.41 costs. Plaintiff appeals, on the ground that the court should also have allowed $68 counsel fees.

As we have seen, no motion was made to vacate the attachment, and the issues involved at the two trials of the action were by no means identical with any question of the validity of the attachment; but it cannot be said that the labor of counsel at the trials was not attributable to or rendered necessary by the existence of the attachment. It was that attachment which compelled defendant’s appearance in the action, since défendant was a foreign corporation, so that, had it not been for the attachment, there would presumably have been no trial, and, therefore, counsel fees incurred in the action are damages which defendant sustained by reason of the attachment, within the meaning of the undertaking in suit. Tyng v. American Surety Co., 48 App. Div. 242, 62 N. Y. Supp. 843; Ives v. Ellis, 35 Misc. Rep. 333, 71 N. Y. Supp. 971, affirmed 67 App. Div. 619, 73 N. Y. Supp. 1137. The counsel for plaintiff sets forth in detail the services performed with regard to the trials and appeal, and the value thereof, and as such services would not have been rendered, were it not for the attachment, they must be regarded as items of damage arising from the issuing of the attachment, and by the terms of the undertaking the defendants are liable for the costs and damages sustained by reason of the attachment.

Judgment-modified, by increasing the recovery by the; sum of $68, and, as modified, affirmed, with costs.