Whitney v. Deniston

2 Thomp. & Cook 471

• Court: New York Supreme Court
• Decided: January 15, 1874
• Status: Published

Opinion

Daniels, J.

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.