Miller v. Ferry

2 N.Y.S. 863, 57 N.Y. Sup. Ct. 256, 19 N.Y. St. Rep. 387, 50 Hun 256, 1888 N.Y. Misc. LEXIS 881

• Court: New York Supreme Court
• Decided: November 23, 1888
• Status: Published

Opinion

Daniels, J.

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. Bank, 7 Abb. Pr. 347. That was also the view 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 in the amount of the undertaking for which he applied, and the order should be affirmed, with $10 costs and disbursements.

Van Brunt, P. J., and Bartlett, J., concur.