Bamberger v. Duden , 9 N.Y. St. Rep. 686 ( 1887 )

Clement, Ch. J.

This action was brought to recover the sum of $14,200, and an attachment was obtained against' the defendant as a non-resident, who thereupon deposited with the sheriff: $20,000 in order to be relieved from the levy. The plaintiff in obtaining the attachment furnished an undertaking in the sum of $250, and the defendant moved, at special term, that the plaintiff be compelled to give further security, which motion was denied, and from such order this appeal is taken.

The costs and disbursements of the action, including referee’s fees, may reach the sum of $1,000, and if the defendant succeeds on the trial such costs would exhaust the amount of an undertaking for that amount and the defendant would have no remedy for any other damages, sustained by him. The costs of the action, if paid, are to be deducted from the amount for which the sureties are liable on the undertaking. Baere v. Armstrong, 26 Hun, 19. It would seem proper that the plaintiff should secure the defendant for his costs and for any other damages beyond the question, and particularly in this case, where the plaintiff does not claim that he is unable to furnish further security.

On an order of arrest the plaintiff (Code Civ. Pro., § 589) is required to give an undertaking at least equal to one-tenth of the amount of bail required, and not less than $250, and while this provision is not included in the section fixing the amount of security required on an attachment, yet it furnishes a proper rule by which to determine the amount of an undertaking on an attachment where the warrant has been levied and where the defendant seeks further security.

If the plaintiff obtains judgment in this action, no injury will be done him by reason of the fact that he has given adequate security to the defendant; and if the defendant is successful, he will have a certainty that he will suffer no loss by reason of the fact that an attachment was wrongfully issued against him.

The order appealed from must be reversed, with ten dollars costs and disbursements, and the motion granted with ten dollars costs, and the amount of the new undertaking to be given is fixed at the sum of $1,400 in lieu of the undertaking already filed.

Osborne, J. concurs.