Hallock v. Belcher & Sackett, 42 Barb. 199

42 Barb. 199 | N.Y. Sup. Ct. | 1864

Clerks, J.

In addition to expenses, damages, and charges alleged to have been directly and immediately incurred by the plaintiff in unloading the merchandise from the schooner, mentioned in the bond upon which this action is brought, he also claims compensation for legal expenses incurred by him in defending a suit in Florida commenced against the schooner by the consignees of the said merchandise. The referee allows $650 for these legal expenses. Are the defendants liable for them, under the bond ? The condition of the obligation provides for the payment of all expenses, damages and charges which may be incurred by the owner or master, or to which they may be subjected, for unloading said goods from the vessel, and for all necessary detention of her for that purpose. The complaint sets up various expenses, damages, disbursements, and charges, for unloading the goods from the vessel, and for her detention for the period of five days. Ho special damages are stated. The defendants seem to have executed the bond as sureties for the plaintiffs in the action in which the process attaching these goods was issued.

In actions for the breach of a contract, or in actions on an indemnity bond, if the plaintiff states no special damages in his complaint, he is confined, in his recovery, to such only as arise from the breach, and then pnlyto such as are proximate, and are the fair, legal and natural result of the act provided against. (Among other cases, see Armstrong v. Percy, 5 Wend. 535; Groat v. Gillespie, 25 id. 383.) The expenses, damages and charges which may be incurred by the master or owner of the vessel in question, or to which they may be subjected, for unloading the goods, are, as in the cases to which I have referred, the necessary, natural and proximate damages resulting from this unloading, and not the expenses to which they may be subjected by any person in Florida, who may suppose that he had a right to have those goods delivered to him there, notwithstanding that they had been taken from the schooner in Hew York by legal process, regular and valid.

In addition to these considerations, the defendants are sureties; and even if the language of the obligation admitted of any hesitation as to the applicability of these principies to the present case, in analogy to that indulgence with which sureties are regarded, they would he entitled to the benefit of the doubt.

[New Yobk Geheral Teem, May 2, 1864.

The evidence referred to by the appellants* counsel would have been inadmissible* if properly excepted to. But no proper exception was taken.

The judgment should be affirmed, on the condition mentioned in Judge Sutherlatid's opinion, and reversed, as he directs, if the condition shall not be complied with.

Sutherland, J.

The $650 for legal expenses clearly was

not allowable. I have a good deal of doubt whether the item of $45.61 for freight on goods attached &c. was allowable ; but, upon the whole, I think the order should be that the judgment' be affirmed on condition that the plaintiff' deduct therefrom the $650, with interest. If the plaintiff does not consent to make this deduction, within a certain number of days to be fixed by the order, then the judgment to be reversed, without costs to either party, as against the other, on this appeal.

Leonard, J. dissented.

Judgment accordingly.

Leonard, Clerhe and Sutherland, Justices.]