
    Thomas M. Tyng, Appellant, v. The American Surety Company, Respondent.
    
      Attachment — when counsel fees are damages sustained by reason thereof.
    
    Where a non-resident defendant, against whose property an attachment has Been issued, after unsuccessfully moving' to vacate the attachment, proceeds to trial and obtains a judgment in her favor, the counsel fees, incurred in the action, are “ damages which the defendant may sustain By reason of the said attachment " within the meaning of the undertaking given to procure the attachment.
    Appeal by the plaintiff, Thomas Tyng, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 28th day of November, 1899, upon the dismissal of his complaint by direction of the court after a trial before the court and a jury at the New York Trial Term.
    
      Henry W. Leonard, for the appellant.
    
      Henry C. Willcox, for the respondent.
   Patterson, J.:

This action was brought to recover upon an undertaking, executed by the defendant herein and given to procure’ an attachment against the property of one Lucinda Baker, in a suit brought against her iii the Supreme Court of the State of New York by one James E. Kelly. The defendant in that suit was a non-resident of the State. The undertaking provided that if the defendant (Baker) “recover judgment in this action, or if the warrant of attachment is vacated, the plaintiff will pay all costs which may be awarded to the defendant, and all damages which the defendant may sustain by reason of the said attachment, not exceeding the sum of $250.” The attachment having been granted, the sheriff made a levy upon the property of the defendant therein. A motion was made on her behalf to vacate the attachment, which was granted at the Special Term, but on appeal to the Appellate Division the order was reversed and the attachment reinstated. (See Kelly v. Baker, 26 App. Div. 217.) Thereafter the cause was tried and a verdict was rendered, in favor of the defendant. Judgment thereupon was entered against Kelly for the costs of the action, amounting to $132.37, and those costs were duly paid by him. Subsequently Lucinda Baker assigned all her rights under the undertaking to this plaintiff,, who brought this action to recover the sum of $250, the amount for which the undertaking was given, and in his complaint alleged, among other things, as follows, viz.: “ That the said Lucinda Baker sustained damage by reason of said attachment in more than the said sum of $250, in that she was compelled to •employ counsel in said attachment suit, whose services therein were reasonably worth the sum of $500.” Upon the trial, the plaintiff proved, in substance, the facts as above stated, and gave some evidence tending to show the value of the services of counsel in the cause. At the close of the plaintiff’s proof,; the defendant moved to dismiss the complaint on the ground that the plaintiff had not “ made out a cause of action; ” that under all the allegations of the complaint it was sought to recover counsel fees in the action, and the plaintiff was not entitled to recover such •counsel fees, the condition of the undertaking being only to pay such damages as would be occasioned by the issuance of the attachment, and that the expenses incurred in the trial of the cause were independent of and did not constitute damage resulting from the attachment or the levy under it. • The learned trial judge appears to have taken that view of the complaint and of the evidence, and dismissed the complaint, and from the judgment entered thereon this appeal is taken.

The condition of the undertaking is tVrofold: First, that if the defendant recovered judgment the surety would pay all costs which might be awarded to the defendant! That condition has been satisfied. Second, all damages sustained by reason of the attachment were also to be paid in the event of the defendant recovering judgment. The sole question before us relates to the expenses ■ of the trial of the action being recoverable, and that depends altogether upon the absolute necessity of trying the action to get rid of the attachment. ■ The.defendant had made efforts to have her property relieved from it by the ordinary procedure of a motion. It was ultimately held on that motion that as process the attachment was valid. It thereupon did become absolutely necessary for her to try the issues in order to relieve her property from the attachment. . It was that process which compelled her appearance in the action. She was a non-resident, and without the attachment she would not have been brought within the jurisdiction of the court. To protect her property she was obliged to appear and subsequently go to trial upon the claim which has been ad judged to be one upon which she was not liable.

It is not to be controverted that sureties on an undertaking given on procuring an attachment are not ordinarily liable for general counsel fees incurred in the action. (Northampton Nat. Bank v. Wylie, 52 Hun, 148.) In that case it was held that sureties were not liable upon an undertaking in the same form as that in the present action, because there counsel fees were in no degree incurred in proceedings taken for the purpose of vacating or setting aside the., attachment. The Northampton National Bank was an institution organized under the National Banking Law of the United States. It had been sued by a creditor in New York, who gave an undertaking on- procuring an attachment against its property. No motion was made or any proceeding taken to vacate or set it aside, although (as was subsequently determined) the property of a National bank was not liable to the process of attachment in a State court. Hence, it was clear, as is said in the opinion in that case, that the bank’s resistance was wholly directed to defeat the action itself by establishing the result that the plaintiff in the suit had no legal claim against the bank. * * * The services of counsel rendered and bestowed in the litigation were for this end entirely; they were to support and maintain the position taken by the answer that the plaintiff, under the law, was exonerated from liability. * * * It is true that this resulted in vacating the attachment, but not from any effort or attempt to set it aside, but because the action itself failed by establishing the truth of the answer and exonerating the bank from legal liability.”

In the case at bar the circumstances are entirely different. Every effort had been made to vacate the attachment, but it was maintained. The property of the defendant in the action was still in the custody of the law, detained from its owner, and there Avas no other way in which it could be released and returned to the owner than by the procurement of a judgment, which would have the effect of discharging the attachment. As said before, had not that process been issued and the defendant’s property taken, there would have been no necessity for her appearing or responding to the demand against her. It can in no sense be said that the expenses incurred on the trial were so incurred merely to meet and dispose of a claim upon the merits; the case had to be tried to rescue the defendant’s property from the levy made under the attachment. We think, therefore, under the allegation of the complaint in this action, and the proof made, it was error to dismiss this complaint.

The judgment should be reversed and a new trial ordered, with costs to appellant to abide the event.

Barrett, O’Brien and McLaughlin, JJ., concurred.

. Barrett, J. (concurring):

I concur with Justice Patterson that the expenses of the trial of the action of Kelly v. Baker Avere damages sustained by Baker by reason of the attachment. Having made every proper effort to get rid of the attachment by direct proceedings, there Avas nothing left for Baker save to get rid of it by defeating the plaintiff upon the merits of the action. But I do not think that this is the sole question. The plaintiff, before he was nonsuited below, asked leave to show how much of the sum proimd (as the value of the total services in the attachment action) related to the trial thereof, and how much to the direct proceedings therein to vacate the warrant. This was denied, the defendant claiming surprise, and the learned trial justice deeming it an effort to amend the complaint in a material particular. This was treating the plaintiff’s request too seriously. He only aslced to divide the services and to apportion their proved value. This was a small matter, and the defendant’s objection thereto was quite trivial. The proof should have been permitted and the complaint conformed" to it. It was not in any sense a material change in the cause of action or in the substantial averments of the complaint.

Even if we are in error, therefore, as to the plaintiff’s right to recover for the total services in the attachment action, lie should, at least, have been permitted to prove, and recover for, so much of these services as related specially to the attachment.

There should, consequently, be a new trial.

McLaughlin, J.; concurred.

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