Bamberger v. Kahn — 6 N.Y. St. Rep. 707

Majority

p. 707

Ira Leo Bamberger v. Charles Kahn et al.

(Supreme Court, General Term, Second Department,

Filed February 15, 1887.)

Headnote

1. Arrest—Order of—When granted by officer having jurisdiction protects parties from action for false imprisonment, even THOUGH SUBSEQUENTLY VACATED.

An order of arrest, which has been granted by an officer having jurisdiction, and having gained jurisdiction, the subject matter protects parties obtaining it from an action for false imprisonment. This rule holds good where the order is subsequently vacated.

2. Same—Undertaking—Damages covered by—Costs, etc.

The undertaking to pay damages by reason of the arrest, which is required upon obtaining the order, is not to provide for a personal wrong or injury, but to cover taxable costs to be awarded in the action, and such other legitimate damages as necessarily flow from the arrest.

3. Same—Action on undertaking assignable—Code Civ. Pro., § 1910.

A cause of action for damages sustained by an arrest is assignable, under Code of Civil Procedure, section 1910.

This action came before this branch of the court upon a case and exceptions to be heard in the first instance at general term.

Ira Leo Bamberger, pl’ff, in person; Edward C. James, of counsel; James T. Lehmaier, for def’t.

It is now settled that an order of arrest which has been granted by an officer having jurisdiction, and upon such officer obtaining jurisdiction of the subject matter, protects parties from an action for false imprisonment. And this is the fact when the order has been subsequently vacated. Marks v. Townsend, 97 N. Y., 590 .

The undertaking to pay damages by reason of the arrest is not therefore to provide for a personal wrong or injury. It is a paper designed to cover taxable costs to be awarded in the action, and such other legitimate damages as flow from the arrest and are made necessary by it. Such as counsel fees and expense in money to vacate the arrest and

p. 708

loss of time occasioned' the arrested party in getting bail and in and about moving for his discharge. Such action is assignable under 1910 of the Code. The assignment transferred the costs proper, which have been paid. The extra expense and damage to the party was also transferred by it and these have not been paid and are recoverable upon being proven in an action on the undertaking. The counterclaim set up by the defendants does not, upon the record, destroy the plaintiff’s action. It may be an offset or counterclaim, and may destroy the plaintiff’s cause of action, but it is denied in the pleadings, and upon a new trial the plaintiff may prove under the pleadings that there is no such claim.

The judgment should, therefore, be reversed and a new trial granted, costs to abide event.

Dykman and Pratt, JJ., concur.