p. 387John S. Miller et al., Resp’ts, v. Charles H. Ferry, App’lt.(Supreme Court, General Term, First Department,Filed November 24, 1888.)Headnote
Attachment—Undertaking on issuance oe—Por what losses sureties ARE NOT LIABLE.Certaia sliares of tlie stock of a corporation owned by tbe defendant were levied upon under an attachment, and after that and during the pend-ency of the action, in which the warrant was issued, the shares depreciated largely in their market price and value. Thereupon the defendant made application for an order that the undertaking given by the plaintiff upon the issuing of the warrant he increased to such an amount as to cover the decrease in value of the stock. Beld, that as the decrease in value of the stock resulted not from the levy under the attachment, hut from causes wholly distinct for which the attaching creditors were not responsible, the sureties on the undertaking would not he liable therefor, and that the defendant accordingly was not entitled to an-increase in the amount of the undertaking.
Appeal from an order denying the defendant’s application to increase the undertaking given by the plaintiffs upon the issuing of an attachment.
David Wilcox, for app’ It; Robert S. Rudd, for resp’ts.
The attachment was served upon shares of mining stock owned by the defendant in the Small Hopes •Consolidated Mining Co. This service was made by delivering a certified copy of the attachment at the office of the company, stating the shares intended to be levied upon. After that, and during the pendency of the suit, the shares depreciated very largely in their market price and value. And it was on this account that the defendant claimed to be entitled to an undertaking in a sufficient sum to include this decrease in value.
But the decrease in the value of the shares did not result from the attachment or from this service upon the corporation, but it resulted from a diminution in the market price of the shares themselves. They were in no respect injured or deteriorated by the attachment, but the loss which was suffered arose, entirely and wholly out of a distinct and extraneous circumstance, for which the attaching creditors were in no manner responsible. And for that loss the sureties in the undertaking given upon the issuing of the attachment, it has been held, would not be liable. McBride v. Farmers’ Bank, 7 Abb. Pr. Rep., 347 .
That was also the view which the court was governed by
p. 388in
Grote v.
Gillespie ( 25 Wend., 383 .) And neither
Day v.
Bach ( 87 N. Y., 57 ), nor
Dunning v.
Humyhrey ( 21 Wend., 31 ), contains anything that is in conflict with this principle. The defendant accordingly was not entitled to the increase in the amount of the undertaking, for which he applied, and the order should be affirmed with ten dollars costs and disbursements.
Van Brunt, P J., and Bartlett, J., concur.