
    Leopold Krause, Respondent, v. James Rutherford and Others, Appellants.
    
      Order of arrest, vacated on, the papers on which- it was granted, — action on the undertaking—when not premature—leave of the court not necessary—measure^ of damages —not the same as in an action for false imprisonment.
    
    Where the undertaking given to procure an order of arrest in an action provides that “if the defendants recover judgment herein, or if it is finally decided that the plaintiff was not entitled to the order of arrest, the plaintiff will pay all costs which may be awarded to the defendants, and all damages which they, or either of them, may sustain by reason of the arrest, not exceeding the sum of two hundred and fifty dollars, ” a defendant, upon obtaining an order vacating the order for his arrest on the papers on which it was granted, is entitled to' maintain an* action upon the undertaking and need not wait until he has obtained judgment in the action, z
    The defendant need not obtain leave of the court before bringing the action on the undertaking, as section 814 of the Code of Civil Procedure, requiring such leave,.only applies to bonds or undertakings given to the People or to a public . officer. .
    In the action upon the undertaking the plaintiff is entitled to recover his counsel ■ fees and expenses in moving to vacate the order of arrest up to the time of the commencement of the action, and also his loss of earnings during the period of his imprisonment under the order of arrest.
    It is error for the court in such an action to charge that the mental and physical suffering of the plaintiff, resulting from his imprisonment, is a proper element of damage, and to refuse to charge that the jury cannot award damages ■ “ because of any disgrace which, has attached,” as the rule of damages in such ' a case is not the same as that applicable to an action for false imprisonment.
    Appeal by the defendants, James Rutherford and others, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of. the clerk of the county of Delaware on the 2d day of June, 1896, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 2d day of June, 1896, denying the defendants’ motion for a new trial made upon the minutes.
    On March 10, 1893, James Rutherford commenced an action m the Supreme Court against the plaintiff, Leopold Krause, and three others to recover damages for an alleged injury to said Rutherford’s property, alleged to have been caused by the wrongful acts of the defendants, and on March 18, 1893, obtained an order of arrest in pursuance of section 519' of the Code of Civil Procedure. The defendants Smith and Wood were the sureties with the plaintiff upon the undertaking. Krause was arrested tiy the sheriff of Delaware county and placed in jail June 21, 1893, and remained in- jail until November 13, 1893, when the order of arrest was vacated and set aside.
    This action was commenceu on the 13th day of December, 1893, upon said undertaking to recover damages sustained by reason of said arrest, and resulted in a verdict for plaintiff for $250.
    No appeal was taken by Rutherford from the order of Novemoer 13, 1893, vacating the order of arrest. After this action was commenced a motion was made to set aside the order vacating the said order of arrest, which was denied. Subsequently to .the commencement- of this action the action begun by Rutherford against the present plaintiff and others was tried, and the defendants obtained a judgment therein.
    There were averments in the complaint tending to set forth a cause of action for false imprisonment, but the trial court,* before the submission of the case to the jury, determined that the plaintiff could not recover for that cause of action.
    
      Robert T. Johnson and Marvin & Hanford, for the appellants.
    
      George W. Youmans, for the respondent.
   Putnam, J.:

The undertaking on which the plaintiff brought-this action provided that “ if the defendants recover judgment herein, or if it is finally decided that the plaintiff was not entitled to the order of arrest, the plaintiff will pay all costs which may be awarded to the defendants, and all damages which they, or either of them, may sustain by reason of the arrest, not exceeding the sum of two hundred and fifty dollars.”

It is urged by the defendants that this action was prematurely brought. At the time of its commencement judgment had not been rendered against the plaintiff in the previous action, and although the order of arrest had been vacated, this had been done on the papers on which such order was granted, and not upon the merits.

We are inclined, although with some doubt, to think that this contention should not be sustained. The undertaking made the sureties -liable “if it is finally decided that the plaintiff was not entitled to the order of arrest.” If the word “ an ” instead of “ the ” had been used in the instrument a different question would arise. The sureties bound themselves to pay the damage. the plaintiff herein should sustain by reason of the order of arrest in fact granted. The decision of the judge vacating that order should be regarded as a final determination that the plaintiff was not entitled thereto, unless such decision should be overruled on a subsequent motion made by the plaintiff in that action or on appeal:

We are also of the opinion that it was not necessary for the plaintiff to obtain leave of the court under the provisions of section 814' of the Code of Civil Procedure to bring this action. That section, by its terms, applies to bonds or undertakings given to the People, or to. a public officer.

But a new trial must be granted, for the reason that the evidence given below was not sufficient to sustain a judgment for $250, and also because of some inadvertent errors of the trial judge in his charge to the jury.

The plaintiff, by the provisions of the undertaking set out in the complaint, was entitled to recover his counsel fees and expenses in, moving to vacate the order of arrest up to the time of the commencement of the action. Such expenses were stated to be fifty dollars, of which forty dollars had been paid. He was also entitled to recover for loss of his time during his imprisonment. At the time of his arrest it was shown that he was earning eighteen dollars per month, and his imprisonment lasted for a period of five months. His. total damage, therefore, for loss of time was ninety dollars. The plaintiff testified that after his imprisonment ceased he could obtain no employment for some time, and then worked for three dollars a month, but he fails to give any sufficient data from which the jury could have estimated his damage for loss of time after his imprisonment, if in this action he was entitled to recover therefor. Ho other damage for which the defendants were liable as sureties on the undertaking in question was shown, and it follows 'that the judgment for two hundred and fifty dollars was unauthorized.

The learned trial court instructed the jury that the suffering the plaintiff endured from his imprisonment, of either body or mind, was a proper element of damage to be considered. The defendants requested the court to charge that “ the jury cannot ■ award- any damages because of any disgrace which has' attached.” The court declined to so charge. In effect, therefore, the learned trial court instructed the jury that the plaintiff could recover against the sureties the same damages he could have recovered against the defendant Rutherford in an action for false imprisonment.

I think the court erred in thus instructing the jury. The true rule in regard to the damages recoverable on an undertaking given on obtaining an order of arrest is stated in Bamberger v. Kahn (43 Hun, 411): “ It is now settled that an order of arrest which has befen granted by an officer having jurisdiction, and upon such officer obtaining jurisdiction of the subject-matter, protects parties from an action for false imprisonment. And this is the fact when the order has been subsequently vacated. (Marks v. Townsend, 97 N. Y. 590.) The undertaking to pay damages by reason of the arrest is not, therefore, to provide for a personal wrong or injury. It is a paper designed to cover taxable costs to be awarded in the action, and such other legitimate damages as flow from the arrest and are made necessary by it, such as counsel fees and expense in money to vacate the arrest and loss of time occasioned the arrested party in getting bail and in and about moving for his discharge.” (See, also, Spang v. Patterson, 23 Misc. Rep. 536.) For the reasons above suggested the judgment should be reversed and a new trial granted, costs to abide the event.

All concurred.

Judgment and order reversed and a new trial granted, costs to abide the event.  