
    Thomas M. Tyng, Respondent, v. American Surety Company, Appellant.
    „ Surety on an undertaking given on an application for an attachment— liability for the costs of unsuccessful proceedings to vacate and also of the trial. '
    
    Where a motion to vacate an attachment, although at first successful, is denied on appeal, but not apparently upon the merits, and the action is thereafter tried and results in a judgment dismissing the complaint, the surety upon the undertaking given to secure the warrant of attachment is liable for the costs and expenses of the proceedings to vacate the attachment as well as for the costs and expenses of defending the action itself.
    
      Appeal by the defendant, the American Surety Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the' office' of the clerk of the county of New York on the 16th day. of April, 1901, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 11th day of April, 1901, denying the defendant’s motion for a new trial .made upon the minutes.
    
      James B. Kelly, for the appellant.
    
      Henry IF. Leonard, for the respondent.
   Laughlin, J.:

The action is on an .undertaking given on procuring a warrant of attachment. The action in which the attachment was issued was brought by James E. Kelly against Lucinda Baker, a non-resident, who, however, was served personally within the State. The complaint in that action alleged a cause of action on an agreement in writing, by which the defendant promised to pay to the plaintiff or to his order the sum of $2^500 the day after the will of Eliza Schneider, deceased, was admitted to probate and upon the plaintiff furnishing to the defendant a general release from J. Henry Schneider. It was alleged that the will was admitted to probate, that the release was tendered and payment demanded and refused. The answer admitted the probate of the will, but put in issue the other allegations, and alleged, in effect, that the execution of the agreement upon which the action was based was procured by fraud and duress.

The attachment was obtained, after issue joined, upon the ground of the non-residence of the defendant, and a levy was made thereunder upon funds in two banks to her credit. The defendant made a motion to vacate the attachment upon affidavits setting up her defense, showing that the funds levied upon were trust funds that came into, her. hands as the executrix of the will of said Eliza Schneider, deceased. The motion was granted, but upon appeal the order was reversed: (Kelly v. Baker, 26 App. Div. 217.) Subsequently, upon the.trial of the issues, the complaint was dismissed with costs, which the plaintiff paid. The defendant Baker thereafter assigned her claim for “ all damages ” sustained “ by reason of the said attachment” to the plaintiff herein, who subsequently brought this action. . .

Upon the trial the plaintiff proved separately the reasonable costs •and expenses of defending the action and of the proceedings to vacate the attachment. The court submitted these questions to the jury, and by consent reserved the right to direct a verdict, after the •discharge of the jury, in accordance with what might be deemed the law of the case. The costs and expenses of defending the action were assessed by the jury at $250, and of the proceedings to vacate the attachment at $150.

It was conceded that the maximum liability on the attachment undertaking for the costs of the action and the damages sustained by reason of the attachment, with interest, was the sum of $290, and that the taxable costs already paid, with interest, aggregating $152, should be deducted, leaving the remaining maximum liability $138. The court, pursuant to the stipulation, subsequently directed the entry of a verdict for plaintiff for that amount.

No point is made by appellant with reference to the amount of the verdict or the computation by which the balance was ascertained. It seems to be assumed that the verdict was authorized if appellant was liable for either counsel fees on the proceedings to vacate the attachment or on trial of the action; but it is contended that neither were recoverable.

• It is argued that inasmuch as the motion to vacate the attachment, though at first successful, ultimately failed, the expenses thus incurred were not necessary damages sustained by the attachment for which the surety is liable. In other words, it is claimed that the light to collect these expenses depended upon the success of the motion. Such a ruling would in effect require a defendant to be his ■own lawyer. He would at his peril incur expense in consulting •counsel or attempting, on the advice of counsel, to free his property from a lien, which might be continued until the-trial owing to compliance by plaintiff with the forms of law, but which never .should have been asserted or acquired because plaintiff in fact had no cause of action. No controlling precedent has been cited or found which establishes such an unjust rule. It has been decided that counsel fees incurred in an unsuccessful effort in opposition to a motion for an injunction are not embraced within an undertaking subsequently given on the granting of the motion. (Youngs v. McDonald, 56 App. Div. 14; affd., 166 N. Y. 639; Randall v. Carpenter, 88 id. 294; Whiteside v. Noyac Cottage Assn., 84 Hun, 555.)

Where the trial of the action is rendered necessary to dissolve an injunction or vacate an attachment, the expenses of' the trial are recoverable of the sureties on the undertaking. (Youngs v. McDonald, supra; Newton v. Russell, 87 N. Y. 531; Whiteside v. Noyac Cottage Assn., supra; Northrup v. Garrett, 17 Hun, 497.) The law was so declared by this court on a former appeal herein from a judgment dismissing the complaint, but the record then showed erroneously that the defendant appeared on account of the attachment, and that consequently the defense became necessary . solely by reason of the attachment. (Tyng v. American Surety Co., 48 App. Div. 240.)

If the defendant in the attachment action had not made all reason-' able efforts by application to the court to. vacate the attachment, he would not have been permitted to recover the expenses of the trial,. which, so far as the attachment was concerned, might not have become necessary had he exhausted his remedy by motion. (Phoenix Bridge Co. v. Keystone Bridge Co., 10 App. Div. 176; affd., 153 N. Y. 644; Northampton Nat. Bank v. Wylie, 52 Hun, 146; affd., 123 N. Y. 663; Hovey v. Rubber Tip Pencil Co., 50 id. 335.)

Counsel fees incurred on an unsuccessful motion to vacate an injunction have been allowed against sureties where the motion was denied in the discretion of the court and not for an irregularity or on the merits. (Andrews v. Glenville W. Co., 50 N. Y. 287; Disbrow v. Garcia, 52 id. 654; Rose v. Post, 56 id. 603.)

It does not appear that the motion to vacate the attachment in question was denied upon the merits. The moneys having been deposited to the individual credit of the defendant in the attachment action, this court held that that in effect showed prima facie individual ownership and a leviable interest. ' It appeared that she was sole beneficiary, and that her interest in the estate exceeded the plaintiff’s claim. The title to the fund was not determined. It being the duty of the sheriff to levy, his levy could not be disturbed until he Was afforded an opportunity of being heard.

These views require an affirmance. It is, therefore, unnecessary to consider whether the rule laid down in Newton v. Russell (supra), that to authorize a recovery against the sureties of counsel fees on the trial it is essential to show that the trial was rendered necessary “ solely or principally ” by reason of the continuance of the in junction, has been modified by the case of Youngs v. McDonald (supra), or whether the evidence sufficiently shows that, the services of counsel rendered upon the trial are damages caused by the attachment.

The judgment and order should be affirmed, with costs.

Patterson, Ingraham and Hatch, JJ., concurred.

Judgment and order affirmed, with costs.  