
    Abraham Balinsky, Appellant, v. Anna Gross, Rudolph Gross and Charles S. Rich, Respondents.
    (Supreme Court, Appellate Term,
    May, 1911.)
    Attachment — Liability on attachment bond, or undertaking — Amount . of recovery.
    On a bond given by the plaintiff upon the granting of a warrant of attachment, where the trial of the action was necessary to enable the defendant to get rid of the attachment, the defendant may recover his counsel fees upon such trial though no motion to vacate the attachment was made.
    Appeal by the plaintiff from a judgment of the City Court of the city of Hew York, entered upon a verdict rendered in favor of the plaintiff, and from an order denying a motion for a new trial. .
    
      Samuel Salimsky, for appellant.
    H. & J. J. Lesser, for respondents.
   Lehman, J.

The plaintiff sues as assignor of the firm of Rivkin Bros., upon a hond in the usual form, executed hy t'he defendants upon an application for a warrant of attachment. It appears conclusively that Rivkin Bros, -were nonresidents of the State and had no place of business in the city of New York; that the writ of attachment and the papers upon which it was granted were sufficient on their face, and that they alleged that Rivkin Bros, were non-residents and had no place of business in the city of New York, thereby giving the plaintiff in the action the right to apply for an (attachment against them if she had a good cause of action. The defendants in that action did not move to vacate the (attachment, but defended the action and obtained a final judgment in their favor after two trials and an appeal.

The defendants in this action do not dispute their liability on the 'bond and have not appealed from the judgment ¡against them, but the plaintiff appeals from a judgment in his favor because the amount of damages awarded does not include the amount of the counsel fees incurred by Rivkin Bros, on the trial of the action.

The rulings of the trial justice in regard to the admission iof evidence to prove the value .of the counsel’s services are inconsistent. He excluded many material and competent questions on this issue on the ground that counsel fees incurred on the trial of the action are not part of the damages ¿which plaintiff should be permitted to prove, unless his assignors first made a motion to vacate the attachment. On the other hand, he did thereafter admit considerable testimony on this issue and charged the jury to allow the plaintiff the reasonable value of the counsel’s services. The jury, however, apparently disregarded the undisputed evidence as to the value of these services. Under such circumstances the ruling which prevented the plaintiff from showing these services in detail, so that the jury could form a clear idea of the value of the services', presents in my -opinion clearly prejudicial error, unless the first impression of the trial justice that the plaintiff was not entitled to such damages was correct.

The question whether fees of counsel employed for the trial of the action are damages sustained by reason of the attachment, within the meaning of the bond, is not free from doubt. The Court of Appeals expressly refused to pass upon this question in the case of Tyng v. American Surety Co., 174 N. Y. 166, 169. In this department, however, there is ample authority for the view that: Where the trial of the action is rendered necessary to dissolve the injunction or vacate an attachment, the expenses of the trial are recoverable.” Tyng v. American Surety Co., 69 App. Div. 137. Where the defendant is a non-resident and without the attachment would not have 'been brought within the jurisdiction of the court, but owing to 'the attachment is obliged, for the protection of his property, to appear and subsequently go to trial upon a claim which is then adjudged to be one upon which he is not liable, he may recover the expenses of the trial. Tyng v. American Surety Co., 48 App. Div. 240. To recover the expenses of the trial, the defendant in the attachment action must show that he has made all reasonable efforts by application to the court to vacate the attachment for those expenses, which, so far as the attachment was concerned, might not have become necessary had he exhausted his remedy. Where, however, it appears that a motion to vacate would be futile, it cannot be said that the defendant has failed to make every reasonable effort to vacate. Fixel v. Tallman, 116 N. Y. Supp. 639. It is true that it was decided in the case of Northampton Natl. Bank v. Wylie, 52 Hun, 147, that, in the absence of such a preliminary motion, there can be no recovery for the expense of the trial, even though such a motion would probably have proved ineffectual; but in that case the attachment was invalid on its face, and the motion would probably have proved ineffectual only because the courts were then proceeding upon an erroneous construction of the law. Where, however, the attachment itself is valid, and the trial of the action is an absolute necessity to rid the defendant of the attachment, the authority of Northampton Natl. Bank v. Wylie does not apply. Ives v. Ellis, 35 Misc. Rep. 333; affd., 67 App. Div. 619.

It follows that the judgment should be reversed and a new trial granted, with costs to appellant to abide the event.

Seabury and Gerard, JJ., concur.

Judgment reversed.  