Minskoff v. Fidelity & Casualty Co. , 281 N.Y.S.2d 410 ( 1967 )

Steuer, J.

Plaintiffs were defendants in a prior action in which Harsh Investment Corp. was plaintiff. An attachment was obtained and a levy made against their property. Defendant supplied the bond for the attachment. There were several defendants in that action and the proportion of the bond applicable to plaintiffs was $60,000. On motion of the plaintiffs here (defendants there), the attachment was vacated and Harsh’s complaint was dismissed. The judgment of dismissal was affirmed in this court, Harsh Inv. Corp. v. Minskoff (24 A D 2d 842, mot. for lv. to app. den. 17 N Y 2d 421). Thereupon plaintiffs brought this action for the damage suffered by reason of the attachment. Both sides moved for summary judgment and Special Term granted defendant’s motion.

The basis for the decision was that the dismissal of Harsh’s action was on the ground of forum non conveniens and that this is not a determination on the merits. The palpable error in this determination lies in the fact that while the earlier decision did not finally determine that Harsh had no claim against these plaintiffs, it did finally determine that there was no right to the attachment which was obtained. The condition of the bond was ‘ ‘ if ■ * * * it is finally decided that the plaintiff was not entitled to an attachment of the property of said defendants.” That has been decided.

Cases relied on by Special Term are without application. Thropp v. Erb (255 N. Y. 75) enunciates the well-known principle that where an attachment is validly issued and not subject to vacatur on motion, a defendant successful on the merits is entitled to counsel fees in defending on the merits. To the same effect is Elsman v. Glens Falls Ind. Co. (146 Misc. 631). Obviously this is not an authority for the proposition contended, namely, that counsel fees or other damages resulting from the attachment cannot be had unless the action is determined on the merits. Nor is the other authority relied on in point. In Apollinaris Co. v. Venable (136 N. Y. 46) the plaintiff obtained a temporary injunction and gave a bond for damages that might result from the temporary injunction if later found to be improperly given. The injunction was vacated not because of any impropriety in its issuance or any defect in plaintiff’s right to final injunctive relief but because plaintiff was guilty of conduct found to be contemptuous. But even here the court, in denying the defendant relief on the bond, was careful to point out that it was not conditioned on plaintiff’s ultimate right to recover but on whether he was entitled to a temporary injunction (p. 49). The court pointed out that if the obligation were interpreted otherwise a plaintiff who tied up the defendant by means of a temporary injunction could always avoid liability on the bond by discontinuing the action prior to trial and thereby forestall any decision on the merits of the action. And the court further pointed out that a determination that plaintiff had forfeited his right to keep the injunction in force by virtue of his subsequent conduct was not an adjudication that he did not have a right to the temporary injunction when it was issued.

Here the situation is the exact converse. It has been finally determined that the plaintiff Harsh had no right to bring the action in this forum. Having no such right, he had no right to obtain an attachment here and this is a final determination on the merits of the attachment. Whether or not Harsh can maintain an action in some other forum has nothing to do with the question presented.

The order entered October 28,1966, and the judgment entered pursuant thereto should be reversed on the law, with costs and disbursements, and summary judgment granted to plaintiffs directing an assessment of damages.