Adler v. Baltzer — 54 N.Y. Super. Ct. 514

Majority

p. 514

SOLOMON ADLER, et al., Respondents, v. HERMAN R. BALTZER, Impleaded etc., Appellant.

Headnote

Undertaking on discharge of attachment—Liability of sureties thereon— Attempted withdrawal of order vacating attachment.

Before Sedgwick, Ch. J., Freedman and Ingraham, JJ.

Decided December 30, 1886.

Appeal from judgment entered upon findings by the court, u]3on issues tried by consent without a jury.

Action on an undertaking given on discharge of an attachment.

It appeared from the answer and from defendant’s offer of testimony on the trial, that after the giving of the understanding in suit, and the entry of the order discharging the attachment, the sheriff refused to deliver up the goods attached without the payment of a very large amount of fees, more than the value of the goods which he had attached, and that the attorney for the defendant in the action in which the undertaking was given informed the plaintiffs’ attorney on October 29, 1880, that the defendants in said action had concluded not to avail themselves of the order, and would not take the goods from the sheriff under it, and that on November 12, 1880, he served a written notice on the sheriff and the plaintiffs’ attorney, notifying them that the defendants withdrew the undertaking, and that afterwards the sheriff sold the attached property for the payment of his fees, and defendants here claimed that by reason of this the consideration for the undertaking failed and the .sureties thereunder were discharged from liability.

The pleadings show that the answer admitted that an order had been made discharging an

p. 515

attachment. There was, therefore, no issue on this point to be tried. It may be said, however, that no testimony was given that tended to show that the admission was not correct. There was no defense, if such an order had been made.

Wingate & Qullen, for appellant.

Horwitz & Hershfield, for respondents.

Judgment affirmed, with costs.