Tischler v. Fishman

34 Misc. 172, 68 N.Y.S. 787

• Court: Appellate Terms of the Supreme Court of New York
• Decided: February 15, 1901
• Status: Published

Opinion

Andrews, P. J.

This is an appeal from an order vacating an attachment and a judgment.

The plaintiff brought an action against the defendant to recover for goods sold and delivered, and obtained an attachment against the property of the defendant. The defendant was not served with the summons, and did not appear, and, an inquest having been taken, judgment was entered against him by default for the amount claimed in the complaint. Subsequently, a motion was made before one of the justices of the Municipal Court to set aside the judgment and vacate the attachment, which motion was denied. Afterwards, the motion was renewed before another justice of that court, and was granted upon the ground that the undertaking upon which the warrant of attachment was granted did not contain any specified sum as the maximum amount for which the sureties should be liable, as required by the Code and the Consolidation Act, Laws of 1882, chap. 410.

This appeal is from the order granting that motion.

It is strenuously contended on this appeal that, after the motion had been denied by one of the justices of the Municipal Court, it could not be renewed before another; also that the alleged defect of the undertaking in question was cured by an amendment allowed by the court at the trial. I do not, however, think it necessary to consider either of these questions, because, assuming that no such amendment was made, we think that the undertaking was neither void nor voidable, and that the failure to insert an amount in the undertaking did not affect the jurisdiction of the court to grant the attachment, and that the attachment was sufficient to sustain the judgment. The material part of the undertaking is as follows: “ The plaintiff will pay all costs which may be awarded to the defendant, and all damages which he may sustain by reason of the said attachment, not exceeding the sum of- dollars, and that if the plaintiff recovers judgment, he will pay to the defendant all money received by him upon property taken by virtue of said warrant of attachment, or upon any bond given therefor, over and above the amount of the judgment and the interest thereupon.”

The obvious intention of the Legislature in providing that a maximum amount should be inserted in the undertaking was to limit the liability of the sureties to a sum certain, but there is no provision of law, so far as I am aware, which forbids the sureties to bind themselves in an unlimited amount if they see fit to do so; and as no amount was inserted in the undertaking in question this was the legal effect of what they did. It is unnecessary, however, to consider the matter as though the question were an original one, for the rule of law applicable to the case has been settled by the Court of Appeals in Dodge v. St. John, 96 N. Y. 260. This was an action upon a conditional bond of the usual form, given by a special guardian in proceedings for the sale of an infant’s real estate, and contained no penalty. In regard to fhis defect, Andrews, J., in the course of the opinion delivered by him which was concurred in by all of the other members of the court said: “The omission of a penalty in the bond does not

affect its validity. The only effect is to make the liability commensurate with the condition.” The present case is a more favorable one for the plaintiff, because the undertaking contains an express promise to pay all costs which may be awarded to the defendant and all damages which he may sustain by reason of the attachment, and, if plaintiff recovers judgment, to pay to the defendant all moneys received by him upon property taken by virtue of the attachment over and above the amount of the judgment and the interest thereupon.

The order appealed from should be reversed, with costs to the appellant.

O’Gorman and Blanchard, JJ., concur.

Order reversed, with costs to appellant.