
    Jesse S. Epstein et al., Respondents, v. The United States Fidelity & Guaranty Co., Appellant.
    (City Court of New. York, General Term,
    July, 1899.)
    Attachment undertaking — Demand, as to surety — Measure of damages.
    A surety upon an undertaking given to procure an attachment is not, upon the latter being vacated, liable to an action on the undertaking unless the amount claimed to be actually due thereon has been first demanded of the surety, nor is its liability greater than the actual damages which have been sustained.
    Appeal from a judgment in favor of plaintiff.
    Dowe, Murray & Hartridge, for appellant.
    Epstein Brothers (Jesse S. Epstein, of counsel), for respondents.
   Hascall, J.

This is an appeal from a judgment in favor of plaintiffs for the sum of $250 alleged damages upon vacating an attachment. We find, upon careful reference to the record and' testimony, good ground for disturbing the judgment below. The action was prematurely brought under Muller v. Earle, 37 N. Y. Super. Ct. 388, and Pach v. Gilbert, 124 N. Y. 620.

Additional grounds for the reversal will be found in the fact that no demand was made upon the company defendant for payment of its bond, or the amount claimed to be actually due thereon, before beginning the action; and that notice of the vacating order was served upon the plaintiffs. It is fundamental that bondsmen will not be held for obligations until they have been paid by one seeking indemnity and have been properly demanded; and, in an action therefor upon an attachment bond recovery can be had only of the damage actually sustained. Groat v. Gillespie, 25 Wend. 383. For these reasons, and without considering the exceptions taken to the impropriety of evidence admitted, the judgment should be reversed and a new trial ordered, with costs to the appellant to abide the event.

Conlan and Sohuohman, JJ., concur.

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