Guest v. Lowther — 82 N.Y.S. 1015

Majority

p. 1015

GUEST v. LOWTHER.

(Supreme Court, Appellate Division, First Department.

June 19, 1903.)

Headnote

1. Action against Nonbesident—Attachment—Amount.

In an action against a nonresident for the alienation of the affections of plaintiff’s wife, where the damages demanded were $75,000, a like sum specified in the attachment was excessive, and should be reduced to $50,000.

3. Same—Undebtaking—Amount.

The undertaking given as a condition of maintaining the attachment for $50,000 should he in the sum of $2,500.

Appeal from Special Term, New York County.

Action by A. Royal Guest for the alienation of his wife’s affections against Clarence L. Lowther. From an order denying his motion to vacate an attachment, defendant appeals.

Modified, and, as modified, affirmed.

Argued before VAN BRUNT, P. J., and McLAUGHLIN, PATTERSON, O’BRIEN,-and LAUGHLIN, JJ.

J. W. Osborne, for appellant.

W. P. Maloney, for 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.

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