Whitney v. Deniston — 2 Thomp. & Cook 471

Majority

p. 471

Whitney, appellant, v. Deniston.

Headnote

Attachment—undertaking in— court may control.

An attachment was issued upon an undertaking in the sum of $1,000, and over $100,000 was seized thereunder. Held, that the court has power to regulate and control undertakings given in applications for provisional remedies, and could in this case require an additional undertaking for a, larger sum.

The complaint alleges that informal notice was received by the defendant that he, defendant, was entitled tc a prize of $500,000, upon

p. 472

a ticket held by him in the royal Havana lottery, of Havana, Guba, payable at Havana; that, in consideration of certain services rendered and to be rendered to him by plaintiff, defendant agreed to pay over to plaintiff one-half of all moneys received from said lottery ticket; that the services were rendered by plaintiff; that defendant received $410,000 on account of the ticket, and demands judgment for $205,000. Defendant’s answer is a general denial.

An attachment was issued on an undertaking, in the sum of $1,000, against defendant’s property, as a non-resident, and over $100,000, in the hands of A. Belmont & Go., was attached. A motion was made to vacate the attachment on the merits, which was denied. A motion was then made by defendant that the security be increased, on the ground that it was not sufficient to protect the defendant. On this motion an order was made, at special term, requiring plaintiff to file an additional undertaking, in the sum of $15,000, and that, in default thereof, the attachment be set aside.^[1]

p. 473

William, F. Shepard and Marsh é Wallis, for appellant.

Edwards Fierrepont, for respondent.

The court has general power to discharge attachments the same as all other provisional remedies. Code, § 241. It may be exercised for all proper reasons, including those where, for any cause, the plaintiff’s proceedings are in any respect defective, and they certainly are so where the amount of the undertaking is insufficient to indemnify the defendant for the costs which may -be awarded to him and the damages he may sustain by reason of the attachment. Code, § 230. It is the intention of the law that the defendant shall have that indemnity where his property is attached • and if the undertaking given, when the attachment is obtained, is insufficient for that purpose, the law cannot be properly administered without requiring an adequate increase in the amount to be made. The power is incidental to all the provisional remedies provided by the Code, and its existence is in substance provided for in the authority which the court has for supplying omissions in any proceeding; it is declared by section 174 of the Code, and it is sanctioned by the ruling made in the case of Rowles v. Hoare, 61 Barb. 266 .

The power over undertakings given in applications for provis.ional remedies is entirely different from that relating to undertakings given on appeal; for there the amount is, in all cases, either fixed by the express terms of the statute, or it is required to be determined upon a hearing on facts indicating what the amount should be. Besides, the authority given the courts over provisional remedies does not apply to proceedings taken for the purposes of appealing:

For these reasons, and those stated by Justice Barrett in his opinion at the special term, the order should be affirmed, with §10 costs, and the disbursements on the present appeal.

Davis, P. J., and Donohue, J., concurred.

Order affirmed.

Cases cited

Rowles v. Hoare 61 Barb. 266 N.Y. Sup. Ct. 1870-11-21 p. 473