Baere v. Armstrong

Davis, P. J. — On the 30th of December, 18Y8, H. B. Claflin and others applied, under the provisions of the Code of Civil Procedure, for an attachment against the property of Julius Baere and Louis Baere, the above named respondents, and the above named appellants, as sureties, under the provisions of section 640 of the Code of Civil Procedure, executed an undertaking whereby they jointly and severally undertook, in the sum of $250, that if the defendants in that action recovered judgment, or if the warrant of attachment was vacated, the plaintiffs therein would pay all costs which might be awarded to the defendants, and all damages which they [516] might sustain by reason of the attachment, not exceeding the sum mentioned. The attachment was issued and served, and in January following it was discharged upon the execution of the bond required by section 688 of the Code. Afterwards and in April following, upon motion made hy the defendants at special term, the attachment was set aside, vacated and discharged, with ten dollars costs. From the order so vacating the attachment Claflin and others, the plaintiffs therein, appealed to the general term of the supreme court, where the order was affirmed, with costs. They then appealed to the court of appeals from the order of the general term, which order was there affirmed, with costs. An action was then brought upon the undertaking against the present appellants, by the respondents, to recover as damages alleged to have been sustained by reason of the attachment, the expenses for counsel fees upon the motion at special term to vacate the attachment, and for attorney and counselor’s fees upon the appeals to the general term and the court of appeals. On the trial proof was given, under the objection and exception, of the expenses of counsel fees paid by the respondents for the argument of the motions at special term and on the several appeals, to a sum exceeding $250, the amount named in the undertaking, and a verdict was rendered in their favor for that amount. The appellants, in the course of the trial, offered, in substance, to prove that Claflin & Co. had paid the ■costs of appeal to the court of appeals, amounting, in the whole, to about $110. Evidence to show these payments was rejected by the court and an exception duly taken. There seems to be no doubt, under the authorities; that the reasonable expenses for counsel fees, on a motion necessary to get rid of the attachment,' may be recovered upon such an undertaking (Northrupp agt. Garbett, 17 Hun, 497 ; Ball agt. Gardner, 21 Wend., 270 ; Bennett agt. Brown, 20 N. Y., 99). These cases establish that where the defendant in an attachment suit is obliged to bring an appeal, or several appeals, to the higher courts, to get the attachment vacated, [517] the expenses attending such appeal are covered by the language of the undertaking. But in this case the motion at special term to vacate the attachment was not denied. It was granted, and the attachment wholly ceased to exist upon entering the order vacating the same. It was Claflin & Co. who brought the appeals to the general term and the court of appeals, and the expenses recovered in this suit were not incurred in an effort to get rid of the attachment, but in resisting an attempt on the part of Claflin & Co. to have the order which vacated it reversed. No case has been called to our attention where the sureties in such an undertaking have been held liable for the costs and expenses made by their principal, by appeal, to reinstate his attachment. Whether the liability of the sureties goes to such an extent, need not now be determined. For we are of opinion that it was error to exclude the offer to show that Claflin & Co. had paid the costs awarded upon the motion and the several appeals. The undertaking of the sureties was that their principal would pay all costs which might be awarded to the defendants, and all damages which they might sustain by reason of the attachment not exceeding the sum of $250. If the evidence had been received it would have shown that Claflin & Co. had paid a portion of the liability which the sureties had undertaken they would pay. Undoubtedly, if the respondents in this action are right in their position that the undertaking followed the appeals to the several courts, the costs awarded by those courts were a part of the liability which the sureties in the undertaking agreed that their principal should pay. Their undertaking was that their principal will pay such costs and damages- to the amount of $250; and when their principals do make payment to the amount thereof their liability on that undertaking is at once discharged. The respondents could not proceed to collect of Claflin & Co. a portion of their costs or damages and then proceed upon the undertaking against the appellants for the whole amount therein specified. Such a construction would impose upon the sureties a greater [518] liability than they have undertaken; and while the rule is that they should be held like other contracting parties strictly to the liabilities incurred, the doctrine that their agreement is to be construed strioiissimi jwris forbids any extension of liability by construction. The question has been distinctly passed upon by MoAdam, J., in a case in the marine court, in which he held, we think, correctly to the effect that any sum paid by the plaintiff in the attachment suit for costs and damages awarded against him operated to reduce the liability specified in the undertaking given by the sureties. We think that decision correct, for the liability of the sureties is not to pay any balance for which his principal may be responsible and which cannot be collected of him, but that his principal will pay all such liability not exceeding a specified sum. In this case, unfortunately, the judge who granted the attachment only required that sum to be $250, although the attachment was for an indebtedness of $6,000. The sum was altogether too small, but, nevertheless, it fixed the liability of the sureties and cannot be extended at this stage of the case. .For'the error in excluding this evidence there must be a new trial. The judgment must be reversed and a new trial ordered, with costs to abide event. Bbadt and Daniels, JJ., concurred.