43 N.Y.S. 194 | N.Y. App. Div. | 1897
This is an appeal from an order of the Special Term requj^Vbg the plaintiff to give additional security in the sum of $8^!)*00 upon the warrant of attachment herein. This" attachmenh'-^asfor $20,000, and the original undertaking thereon was fordtfnt" $300. We might properly dispose of this appeal by the simple statement that such an undertaking was entirely insuffici&iA^and that the officer who granted the attachment might origi>ally with great propriety have required an undertaking in the /’additional sum which the order now complained of-calls upon /die plaintiff to furnish.
The plaintiff’s nunn contention is that the Special Term “ was wholly without jurisdiction, power or authority to make” the" order in question. He seems to overlook section 682 of the Code of Civil Procedure, where this power is expressly conferred. It is a power which is frequently exercised. Before it was thus expressly conferred it was held to be an incident to the regulation and conduct of provisional remedies. (Whitney v. Deniston, 2 T. & C. 471.) What the plaintiff really complains of is not the want of power, but an abuse of discretion. That is, indeed, the substance of his argument. But this complaint is equally unfounded. Its presentation
The Special Term upon these facts might well have increased the security to the full value of the goods which this non-resident plaintiff has thus managed to capture. These goods were turned over to him either in fulfillment of the contract, or as custodian (in place of the sheriff) pending this action for the breach. If the former, this action must fail, at least in its most essential features, for how can the plaintiff obtain substantial damages for the breach of the contract after he has accepted the goods in fulfillment ? As, however, the plaintiff is steadily- proceeding with this action, and indeed exhibits a marked aversion to stipulating to vacate his attachment, it is evident that he insists upon substantial damages for the breach,
The order appealed from should, therefore, be affirmed, with ten dollars costs and disbursements.
Van Brunt, P. J., Rumsey, Williams and Patterson, JJ., concurred.
Order affirmed, with' ten dollars costs and disbursements.