Guest v. Lowther — 84 A.D. 462

Majority

p. 462

A. Royal Guest, Respondent, v. Clarence L. Lowther, Appellant.

Headnote

Attachment—when the amount is too great and the security is inadequate.

In a case where an attachment for §75,000 had been issued and a §250 undertaking given, the Appellate Division considered that the security was preposterously small, and required that the attachment should he reduced to §50,000 and the undertaking increased to §2,500.

Appeal by the defendant, Clarence L. Lowther, from an order of the Supreme Court, made at the Hew York Special Term and entered in the office of the clerk of the county of Hew York on the 8th day of May, 1903, denying the defendant’s motion to vacate an attachment theretofore issued in the above-entitled action.

The action, was brought to recover $75,000 damages for the alienation of the affections of the plaintiff’s wife. The attachment was granted on the ground that the defendant is a non-resident of the State of Hew York.

Jewries W. Osborne, for the. appellant.

William P. Maloney, for the respondent.

While it is exceedingly difficult in cases of this description to: determine what amount of damages the plaintiff will probably recover in the event of his success in the action, we think that the amount specified in the attachment in this case is altogether too; high and that it should be reduced to the sum of $50,000.

The security given upon the attachment is preposterously small. The idea of issuing an attachment for $75,000 on a $250 undertaking seems upon its face to be abolishing the giving of security upon the issuance of such summary processes.

We think that as a condition of maintaining the attachment for. $50,000 an undertaking in $2,500 should be given.

Upon the other points raised upon this appeal we think that the court acquired jurisdiction, and we see no reason for interfering with its action in issuing the attachment.

p. 463

The order should be modified as before suggested and as so modified affirmed, without costs.

Present—Van Brunt, P. J., Patterson, O’Brien, McLaughlin and Laughlin, JJ.

Order modified as directed in opinion and as modified affirmed, . without costs.