Straschitz v. Ungar

PENDLETON, J. The action is on an undertaking given on obtaining a warrant to seize in an action to foreclose a lien on a chattel under sections 76 and 138, Municipal Court Act. Defendant therein was successful in the foreclosure suit, and seeks to recover the expenses of the trial, including jury fees and counsel fees, and damages by reason of being deprived of his property during the pendency of the suit. No application by way of motion to set aside the warrant appears to-have been made, and defendants contend in such case the expenses of the trial cannot be allowed. [1, 2] It is well settled that, where the trial of the action is rendered necessary to dissolve an attachment, the expenses of the trial are recoverable. In Balinsky v. Gross, 72 Misc. Rep. 7, 128 N. Y. Supp. 1062, this court has held that, where it appears that a motion to vacate would have been futile, such motion is not necessary, and that where [119] the issuance of the warrant was based on the nonresidence of defendant, and such nonresidence was not disputed, it appeared that plaintiff in the action had a right to apply for the attachment, if she had a good cause • of action, and in such case defendant was entitled to recover the expenses of the trial, although no motion to vacate had been made. • The warrant and proceedings for its issue in this case were in all respects regular on their face, and the plaintiff was entitled to it, if he had a good cause of action. This is matter for the trial, and under the foregoing authority the defendant (the plaintiff here) is entitled to recover the expenses of the trial. [3] Ungar, one of the defendants, claims he should have been allowed his counterclaim for the amount due by plaintiff to him on contract. Section 151 allows a counterclaim in favor of one defendant, between whom and the plaintiff a separate judgment may be had in the action. As the obligation in this case is joint and several, the counterclaim in favor of the defendant Ungar should have been allowed, and the judgment against him should be modified, by deducting the amount of this claim, $28.20. Atwater v. Spader, 12 N. Y. St. Rep. 506; Parsons v. Nash, 8 How. Proc. 454; Coffin v. McLean, 7 Wkly. Dig. 436. Judgment should be modified in the particular above stated, and, as so modified, affirmed, but without costs. Judgment modified, by reducing the amount of the recovery to the sum of $75 and appropriate costs in the court below, and, as modified, affirmed, without costs of this appeal. All concur.