Cullingworth v. Wilson

84 N.Y.S. 968

• Court: Appellate Terms of the Supreme Court of New York
• Decided: November 12, 1903
• Status: Published

Opinion

PER CURIAM.

Defendants were sureties on an undertaking on attachment in the case of Simpson v. Jersey City Contracting Co. The said attachment was vacated, and plaintiff, as assignee of the claim of the Jersey City Contracting Company, sues, for damages sustained by reason of the attachment. The damages are for lawyer’s fees in getting the attachment vacated. The limit of the undertaking was $250, and the value of the legal services is placed at that figure.

The plaintiff has received not only an assignment of the corporation, executed by its receiver, but also of the attorneys of the corporation who obtained the setting aside of the attachment. Some evidence was introduced to show the nature and value of the services.. The justice gave judgment for plaintiff for $250. The record shows that the case was submitted on November 24th, and the Judgment given on December 8th, which was within the 14-day limit. Defendants seek to contest this in an affidavit, which, however, is denied by plaintiff’s affidavit. In view of the record, it should be held that the justice had not lost jurisdiction. 21 Abb. N. C. 192. The defendants rely mainly on an alleged defect in plaintiff’s title on account of insufficient proof of the appointment of the receiver. The assignments to plaintiff from the receiver and the attorneys of the corporation are annexed to the record, as well as a certified copy of the appointment of the receiver; also a certified copy of the receiver’s bond handed up on this appeal, but not annexed to the record. An omission in proof of a matter of record may be supplied on appeal to sustain a judgment when the record cannot be answered or changed. Dunford v. Weaver, 84 N. Y. 445.

Judgment affirmed, with costs. All concur.