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Dusseldorf v. Redlich

23 N.Y. Sup. Ct. 624 Court N.Y. Gen. Term English

Judges Present — Davis, P. J., Beady and Ingalls, JJ.

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p. 624
MORRIS DUSSELDORF, Respondent, v. LUDWIG REDLICH and W. H. HARDMAN. composing firm of L. REDLICH & Co., Appellants.

Headnote

Code of Civil Procedure, section 682 — right to have secw'ity on attachment increased wider — widei'taking given wider section 688 not a waiver of.
The giving- of an undertaking under section 688 of the Code of Civil Procedure to relieve property attached ii-oin. the lien thereof, is not a waiver of the right to have the security given upon the issuing of the attachment increased, in pursuance of section 682 of the said Code.
Appeal from an order denying a motion, under section 682 of tire Code of Civil Procedure, that additional security be given on an attachment.
The plaintiff obtained an attachment against the defendants as non-residents, upon filing the usual bond required by the Code. The defendants thereupon appeared and filed a bond, as required by statute, to discharge the attachment, the sureties duly justified, the bond was approved and an order was entered by defendants discharging the attachment. Defendants now moved that plaintiff's bond, given to obtain the attachment, be increased.
Rudolph Sampler, for the appellants.
Otto Horwits, for the respondent.

The affidavits on the part of the appellants show a case entitling them to additional security. The court denied the motion solely on the ground that the giving of an undertaking, under section 688 of the Code of Civil Procedure, to relieve the property attached from the operation of the attachment, is a waiver of the

p. 625
right to have the security increased, pursuant to section 682 of that Code.

We think the undertaking, under section 688, becomes merely a substitute for the property attached, and the warrant of attachment is not thereby so far discharged as to prevent the defendants from requiring the additional security provided for by section 682.

The order should be reversed, and an order made directing additional security to be given in the sum of $500, with sureties who can justify in at least double that amount, with ten dollars costs and disbursements.

Present — Davis, P. J., Beady and Ingalls, JJ.

Ordered accordingly.