
    BILDERSEE against ADEN.
    
      Supreme Court, First Department, First District;
    
    
      General Term, 1872.
    Ukdebtakino ok Attachmekt.
    In an action on a statutory undertaking, a consideration need not be proved.
    An undertaking given to procure the discharge of property levied on under an attachment, is not invalidated because the attachment is afterwards set aside on counter-affidavits.
    
      It seems, that it would be otherwise if the attachment were set aside because of the insufficiency of the affidavits on which the attachment was originally obtained.
    Appeal from a judgment.
    Barnet Bildersee and others sued Joseph Aden and others, in the supreme court, on an undertaking which had been given by the defendants under section 341 of the Code, to procure the release of goods levied on under an attachment issued as a provisional remedy under the Code of Procedure, against the property of one Mrs. Boxius, in a former suit. This attachment had, subsequent to the giving of the undertaking, been vacated by Mrs. Boxius, on counter affidavits. Judgment, however, was obtained against her, and this suit brought on the bond.
    A decision on demurrer to the complaint is reported in 8 Abb. Pr. N. S., 171.
    The decision on the trial, where defendants had judgment of dismissal of the complaint, on the ground that there was no consideration for the undertaking after the attachment was vacated, is reported in 12 Abb. Pr. N. S., 163. From that judgment, plaintiffs appealed to the court at general term.
    
      A. Blumenstiel, for the plaintiffs, appellants.
    1, The undertaking provides for the payment of the j ndgment, if any be rendered, upon demand, without any other contingency. The sureties undertake to pay on demand to the plaintiffs “ any judgment which may be recovered against the defendants in this action not exceeding the above mentioned sum.” This is, therefore, an absolute undertaking to answer for the debt of another, upon the conditions set out in the instrument itself, to wit: there must be a judgment and a demand. It therefore comes within the statute of frauds, and the undertaking cannot be vitiated by any extrinsic evidence, nor can the intention of the guarantors, as expressed, be altered by parol or extrinsic proof. The undertaking did not provide that it should be void in case the attachment be subsequently discharged on motion ; and, therefore, the fact that it was so discharged did not affect our right to recover upon the undertaking. A condition not in the instrument cannot be supplied (1 Greenl. on Ev., §§ 275, 282; 2 Phil, on Ev., 350; 2 Stark. on Ev., 544, 548; 18 Johns., 45; 24 Wend., 419; 8 Johns., 190; 11 Id., 201; 2 Sandf., 202).
    II. The undertaking, and the statutes under which it was given, are to be construed to sustain the defendant’s liability (4 Hill, 384; 20 Wend., 561; 7 N. Y. [3 Seld.], 97; 11 Id. [1 Kern.], 593, 601).
    III. The undertaking was a voluntary instrument. The defendants were not bound to give it. The Code is not peremptory. The defendants might have relied on their motion, and the remedy for damages on the bond or otherwise. The defendants might have given the undertaking, even had no attachment been issued (Coleman v. Bean, 3 Keyes, 94; 32 How. Pr., 370).
    IV. The discharge under section 241 is a matter distinct in itself, and not affected by any proceeding not falling within the purview of that provision. The motion to discharge might be made after judgment (15 AN). Pr., 189; Id., 97; 24 How. Pr., 286; Bildersee v. Aden, 8 Abb. Pr. N. S., 171-173).
    V. The attachment was not vacated upon a jurisdictional question. I grant that if this attachment had been issued under the non-imprisonment act of 1831, the bond or undertaking would also be void. Because the attachment there is original process, and the dismissal thereof ousts the court of jurisdiction (Cadwell v. Colgate, 7 Barb., 253). Again, if this attachment had been vacated upon the papers on which it was granted,—to wit: upon a question of jurisdiction or insufficiency of the affidavit,—then there might be a question whether the undertaking would remain valid.
    VI. The court cannot supply an omission made by the legislature in enacting a law, even if it clearly appears that the legislature intended to enact the part omitted, provided there is no ambiguity in the law itself (41 Barb., 450; Drummond v. Hudson, 14 N. Y. [4 Kern.], 60). The undertaking under section 241 of the Code is clear and unambiguous, and by no stretch of language or construction can this section or the undertaking be made to read that it shall be void if the attachment is vacated. The instrument is clear and absolute on its face, and provides simply for the payment of the judgment, nothing else. The consideration, if any is required, was the release of the goods upon the giving of the undertaking (31 N. Y., 350; 11 Johns., 192; 18 Id., 47; 20 Wend., 562; Wallace v. Harris, 7 N. Y. [3 Seld.], 97; 11 Id. [1 Kern.], 602).
    
    
      Cox & Ready, for defendants, respondents.
   By the Courtt.—Ingraham, J.

The learned judge before whom this case was tried was in error in holding that any consideration was necessary to uphold an undertaking given on a release of an attachment. The release of the property levied on was a sufficient consideration, if any was necessary; but where the attachment is issued, and an undertaking is given to discharge, under the provisions of the statute, no consideration is necessary either to be inserted thereon or to be proven on the trial. The statute (Code, §§ 240, 241) provides that on application to discharge the attachment, the defendant shall deliver to the court or officer an undertaking, &c. It is a statutory undertaking, for which no consideration is necessary. This has been repeatedly held. ■ In Thompson v. Blanchard (3 N. Y. [3 Comst.], 335) it was held that where a statute required an undertaking to be entered into to give a right of appeal, it was valid, although it did not express a consideration. It was also then said that the statute of frauds only applied to common law agreements, and not to instruments created under special statutes. This case was approved in Doolittle v. Dininny (31 N. Y., 350), and Johnson v. Ackerson (40 How. Pr., 222). In Coleman v. Bean (32 Id., 370) an undertaking purporting to be issued to discharge an attachment was held valid, although no such attachment ever issued.

It is urged for the respondents that, the attachment having been set aside, the undertaking fell with it, and ceased to be a valid security. It is settled that if the attachment was improperly issued, and is afterwards set aside on that ground, there was no jurisdiction to sustain it, and, where that is the case, the undertaking as well as the attachment is void. This was the case in Cadwell v. Colgate (7 Barb., 253), where the affidavit on which the attachment was issued merely stated the belief of the party, and did not authorize the issuing of the attachment. In the present case, the affidavit on which the attachment issued was sufficient to call upon the officer to whom it was presented to exercise his judgment in granting it, and the subsequent proceedings to set it aside did not raise the jurisdictional question. In such cases, the rule, I think, is, that a bond or undertaking remains valid, although the attachment is subsequently set aside, unless the court expressly orders the undertaking also to be canceled. It is only where there is a total want of evidence on some essential point that the officer fails to acquire jurisdiction (Matter of Faulkner, 4 Hill, 598; Haggard v. Morgan, 5 N. Y. [1 Seld.], 422).

From the cases above cited, it is apparent that the party giving the undertaking could not set up as matter of defense to an action upon the same, that the grounds on which it was issued were not true; the giving of the undertaking concludes the parties on that point. The fact of the setting aside of the attachment upon the same grounds does not alter the character of the defense, and unless the court, when the attachment is vacated, makes the same order as to the undertaking, it is left in force, and such a defense cannot be made to it.

Judgment reversed and new trial ordered, costs to abide event.  