p. 457upon the undertaking, the judgment in favor of plaintiff not having been paid, held, that though the entry of judgment for defendant at the trial, there having been no stay of proceedings, irrevocably annulled the attachment so that it could not be revived by the reversal of said judgment on appeal, it did not discharge the bond of the surety on the undertaking, and that defendant was liable thereon.
Action upon an undertaking given under section 688 of the Code of Civil Procedure to discharge an attachment on property.
Taylor, Jackson & Brophy (Howard Taylor, of counsel), for plaintiff.
Lewis, McKay, McMillen & Bowen, for defendant.
The plaintiff brought an action against a foreign corporation- and obtained a warrant of attachment against its property. The corporation appeared in the action, obtained an order discharging the attachment as to the whole of the property attached and gave the undertaking required by section 688 of the Code of Civil Procedure in the sum of $30,000 “ that the defendant will, on demand, pay to the plaintiff the amount of any judgment which may be recovered herein against the defendant, not exceeding the above-mentioned sum, with interest.” The action was subsequently tried and judgment entered upon a verdict of a jury for the defendant dismissing the complaint, with costs. An appeal was taken to the Appellate Division, which court reversed the judgment for the defendant and directed the entry of judgment absolute for the plaintiff. The judgment has not been paid, and the present action is brought against the surety upon the undertaking given as aforesaid. It is claimed in defense to the action that no stay of proceedings having been obtained at the time when judgment was em
p. 458tered for the defendant, the said judgment annulled the attachment and discharged the surety upon the undertaking. This defense is based upon the wording of section 3343 of the Code of Civil Procedure, subdivision 12, which states:
“A warrant of attachment against property is said to be annulled ’ when the action, in which it was granted, abates or is discontinued; or a final judgment rendered therein in favor of the defendant. *
* * But, in the case last specified, a stay of proceedings suspends the effect of the annulment, and the reversal or vacating of the judgment revives the warrant. ’ ’ It might well be that since no stay of proceedings was obtained upon the judge’s minutes at the close of the trial, the entry of judgment for the defendant irrevocably annulled the attachment so that it could not be revived by the reversal of the judgment on appeal
(Friede v. Weissenthanner, 27 Misc. Rep. 518 -519), but it does not follow that the' undertaking upon which this action was brought was also thereby annulled and the surety discharged. The annulment of the attachment does not necessarily discharge the bond of a surety given to procure the release of the property attached. Where an attachment is set aside for want of jurisdiction to sustain it, the undertaking as well as the attachment is void.
Cadwell v. Colgate, 7 Barb. 253 . But where the attachment was legally and properly issued, and is subsequently set aside or vacated, it has been held in an early case that the undertaking given- to release it remained in full force, unless the court in vacating the attachment expressly vacated the undertaking.
Bildersee v. Aden, 62 Barb. 175 . In the case at bar the attachment was valid at the time when the undertaking' was given to discharge it, and, in consideration of the discharge, the surety agreed unconditionally to pay the amount of
“ any judgment which may be recovered
p. 4593 herein against the defendant.” Such-a judgment has been finally recovered in the said action, and the defendant herein is liable to the extent of its undertaking for the payment of the judgment, with interest. Judgment for the plaintiff for $30,000, with interest thereon from March 30,1914.
Judgment accordingly.