
    (81 Hun, 595.)
    WAEBER et al. v. TALBOT et al.
    (Supreme Court, General Term, First Department.
    November 16, 1894.
    Attachment—Discharge—Amount of Undertaking.
    Where an undertaking to discharge an attachmentisfor the total amount claimed by plaintiff, the court is not, under Code Civ. Proc. § 688, providing that said amount “must be at least equal to plaintiff’s demand,” bound to increase such amount, in the absence of a showing that plaintiff will be prejudiced by its refusal so to do.
    Appeal from special term, New York county.
    Action by Gustavus A. Waeber and Walter Lea against Gabriel Talbot and others. From an order denying a motion to vacate an undertaking, plaintiffs appeal.
    Affirmed.
    Argued before VAN BRUNT, P. J., and O’BRIEN and PARKER, JJ.
    F. de L. Smith, for appellants.
    Robert C. Taylor, for respondents.
   O’BRIEN, J.

An undertaking given to discharge a warrant of attachment was sought to be set aside upon the ground that the sum stated in the undertaking was not sufficient to protect the interests of the plaintiffs, under the provisions of section 688 of the Code of Civil Procedure. This section provides that the undertaking shall be, in effect, “that he will on demand pay to the plaintiff the amount of any judgment which may be recovered in the action against him, not exceeding a sum specified in the undertaking, with interest. The sum so specified must be, at least, equal to the amount of plaintiff’s demand.” The complaint and affidavits on attachment are not a part of the printed papers on appeal, and there is force, therefore, in the suggestion that the appeal should be dismissed, because there is not sufficient before the court to determine whether or not the undertaking as filed conforms to the statute. The only paper upon which the plaintiffs moved below was an affidavit stating that the undertaking “is limited by the amount $3,032, which is the sum demanded in the complaint, exclusive of interest, together with the costs and expenses.” Upon the motion below, the defendants called attention to the fact that, through inadvertence, the undertaking was less than the amount demanded by 50 cents principal, and a few days’ interest. ‘Although this is urged upon the appeal, it was not upon the motion below; and, there being no contradiction of the statement that plaintiffs said that they would not object to the undertaking upon the ground of such error, they are not in a position to take that objection here.

Upon the merits, the undertaking, being given for what was conceded by the parties to be the principal and interest, together with the costs and expenses, was sufficient; and though it was in the power of the court, as stated in the opinion below, to increase the amount, the court was not bound to do so, in the absence of any fact showing that the plaintiffs would be prejudiced by such refusal. All that they are entitled to get is the amount of their demand, with interest and costs and expenses, and these are secured by the undertaking given. The order appealed from should be affirmed, with $10 costs and disbursements. All concur.  