Waeber v. Talbot — 63 N.Y. St. Rep. 426

Majority

p. 426

Gustavus A. Waeber et al., App’lts, v. Gabriel Talbot et al., Resp’ts.

Supreme Court, General Term, Mrst Department,

Mled November 16, 1894.)

Headnote

Attachment—Undertaking—Amount or.

The court is not bound to increase the amount of an undertaking to discharge an attachment, which is for the total amount claimed by plaintiff, in the absence of proof that plaintiff will be prejudiced by such refusal.

Appeal from an order denying a motion to vacate an attachment.

F. de L. Smith, for app’lts ; Robert C. Taylor, for resp’ts

An undertaking given to discharge a warrant of attachment was sought to be set aside npon the ground that the sum stated in the undertaking was not sufficient to protect the interests of the plaintiffs, under the provisions of § 688 of the Code of Civil Procedure. This section provids that the undertaking shall be, in effect, “that he will on demand pay to the plaintiff the amount of any judgment which may be recovered in the ° action against him, not exceeding a sum specified in the undertaking, with interest. The sum so specified must be, at léast, equal to the amount of plaintiff’s demand.” The complaint and affidavits on attachment are not a part of the printed papers on appeal, and there is force, therefore, in the suggestion that the appeal should be dismissed, because there is not sufficient before the court to determine whether or not the undertaking as filed con

p. 427

forms to the statute. The only paper upon which the plaintiffs moved below was an affidavit stating that the under taking “is limited by the amount $3,032, which is the sum demanded in the complaint, exclusive of interest, together with the costs and expenses.” Upon the motion below, the defendants called attention to the fact that, through inadvertence, the undertaking wras less than the amount demanded by 50 cents principal, and a few days’ interest. Although this is urged upon the appeal, it was not upon the motion below; and, there being no contradiction of the statement that plaintiffs said that they would not object to the undertaking upon the ground.of such error, they are not in a position to take that objection here.

Upon the merits, the undertaking, being given for what was conceded by the parties to be the principal and interest, together with the costs and expenses, was sufficient; and though it was in the power of the court, as stated in the opinion below, to increase the amount, the court was not bound to do so,. in the absence of any fact showing that the plaintiffs would be prejudiced by such refusal. All that they are entitled to get is the amount of their demand, with interest and costs and expenses, and these are secured by the undertaking given.

The order appealed from should be affirmed, with $10 costs and disbursements.

All concur.'