62 N.Y.S. 843 | N.Y. App. Div. | 1900
Lead Opinion
This action was brought to recover upon an undertaking, executed by the defendant herein and given to procure’ an attachment against the property of one Lucinda Baker, in a suit brought against her iii the Supreme Court of the State of New York by one James E. Kelly. The defendant in that suit was a non-resident of the State. The undertaking provided that if the defendant (Baker)
The condition of the undertaking is tVrofold: First, that if the
It is not to be controverted that sureties on an undertaking given on procuring an attachment are not ordinarily liable for general counsel fees incurred in the action. (Northampton Nat. Bank v. Wylie, 52 Hun, 148.) In that case it was held that sureties were not liable upon an undertaking in the same form as that in the present action, because there counsel fees were in no degree incurred in proceedings taken for the purpose of vacating or setting aside the., attachment. The Northampton National Bank was an institution organized under the National Banking Law of the United States. It had been sued by a creditor in New York, who gave an undertaking on- procuring an attachment against its property. No motion was made or any proceeding taken to vacate or set it aside, although (as was subsequently determined) the property of a National bank was not liable to the process of attachment in a State court. Hence, it was clear, as is said in the opinion in that case, that the bank’s resistance was wholly directed to defeat the action itself by establishing the result that the plaintiff in the suit had no legal claim against the bank. * * * The services of counsel rendered and bestowed in the litigation were for this end entirely; they were to support and maintain the position taken by
In the case at bar the circumstances are entirely different. Every effort had been made to vacate the attachment, but it was maintained. The property of the defendant in the action was still in the custody of the law, detained from its owner, and there Avas no other way in which it could be released and returned to the owner than by the procurement of a judgment, which would have the effect of discharging the attachment. As said before, had not that process been issued and the defendant’s property taken, there would have been no necessity for her appearing or responding to the demand against her. It can in no sense be said that the expenses incurred on the trial were so incurred merely to meet and dispose of a claim upon the merits; the case had to be tried to rescue the defendant’s property from the levy made under the attachment. We think, therefore, under the allegation of the complaint in this action, and the proof made, it was error to dismiss this complaint.
The judgment should be reversed and a new trial ordered, with costs to appellant to abide the event.
Barrett, O’Brien and McLaughlin, JJ., concurred.
Concurrence Opinion
I concur with Justice Patterson that the expenses of the trial of the action of Kelly v. Baker Avere damages sustained by Baker by reason of the attachment. Having made every proper effort to get rid of the attachment by direct proceedings, there Avas nothing left for Baker save to get rid of it by defeating the plaintiff upon the merits of the action. But I do not think that this is the sole question. The plaintiff, before he was nonsuited below, asked leave to show how much of the sum proimd (as the value of the total services in the attachment action) related to the trial thereof, and how much to the direct proceedings therein to vacate the warrant. This was denied, the defendant claiming surprise, and the learned trial justice deeming it an effort to amend the complaint in a material particular. This was treating the plaintiff’s request too seri
Even if we are in error, therefore, as to the plaintiff’s right to recover for the total services in the attachment action, lie should, at least, have been permitted to prove, and recover for, so much of these services as related specially to the attachment.
There should, consequently, be a new trial.
McLaughlin, J.; concurred.
Judgment reversed, new trial ordered, costs to appellant to abide event.