Fuerstenberg v. American Soda Fountain Co.

| N.Y. App. Div. | Nov 15, 1897

Van Brunt, P. J.:

A warrant of attachment was issued in this case requiring the sheriff to attach the property of the defendant to the amount of $9,653 and interest, together with the costs and expenses. The undertaking upon the attachment was in the sum of $250. The property of the defendant was attached, and, for the purpose of discharging the attachment, the defendant filed an undertaking with the court to secure the amount of the plaintiff’s alleged claim, with interest and costs, which undertaking was duly approved by the judge granting the warrant of attachment, and an order was entered discharging such attachment. . The. defendant was required to pay to the sheriff the sum of $281.32, his fees upon the discharge of the attachment, and he thereupon moved for an increase in the security given by the plaintiff upon obtaining the attachment. This motion was denied, and from the order thereupon entered this appeal is taken.

It is plain that the security given was altogether inadequate. The condition of the undertaking on the attachment was that if the defendant recovered judgment, or if the warrant was vacated, the plaintiff would pay all costs which might be awarded to the defendant, and all damages which he might sustain by reason of the attachment, not exceeding the sum specified in the undertaking; It is apparent that $250 is no security for the costs which the plaintiff may be called upon to pay if the deféndant is successful. The disbursements already necessarily incurred upon the part of the defendant in discharging the attachment exceed the amount of the undertaking. Security upon an attachment is intended to be an indemnity to the defendant against his costs, disbursements and damages, and, as already seen, the undertaking in question by no means secures the' plaintiff in the manner contemplated by the Code. We. think, therefore, that the motion should have been granted, and the security increased by the sum of $150.

The order appealed from should be reversed, with ten dollars costs, and disbursements, and the motion granted directing that a new undertaking in the sum .of $1,000 be given, with ten dollars costs of the motion.

Williams, Patterson, O’Brien and Ingraham, J J., concurred.

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