Miller v. Ferry — 57 N.Y. Sup. Ct. 256

Majority

p. 256

JOHN S. MILLER and Others, Respondents, v. CHARLES H. FERRY, Appellant.

Headnote

Depreciation in the value of securities lend upon under an attachment — is notchm-geable to the sureties_ on the undertaking.

Where a levy has been made, under an attachment, upon certain shares of stock owned by the debtor, the fact that, during the continuance of the suit, the shares have greatly depreciated in their market-price and value, does not render the sureties upon the undertaking, given to obtain the attachment, liable for such loss.

Appeal irom an order of April 23, 1888, made at chambers in the county of New York, denying the defendant’s application to increase the undertaking given by the plaintiffs upon the issuing of an attachment.

Drnid Wilcox, for the appellant.

Robert S. Rudd, for the respondents.

The attachment was served upon shares of mining stock owned by the defendant in the Small Hopes Consolidated Mining Company. 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’ Branch Bank, 7 Abb. Pr., 347 .) That was also the view

p. 257

which the court was governed by in Groat v. Gillespie ( 25 Wend., 383 ); and neither Day v. Bach ( 87 N. Y., 57 ), nor Dunning v. Humphrey ( 24 Wend., 31 ), contains anything that is in conflict with this principle. The defendant, accordingly, was not entitled to the increase irt the amount of the undertaking for which he applied, and the order should be affirmed, with ten dollars costs and disbursements.

Yan Brunt, P. J., and Bartlett, J., concurred.

Order affirmed, with ten dollars costs and disbursements.