
    BILDERSEE against ADEN.
    
      Supreme Court, First District;
    
    
      At Circuit, March, 1871.
    Undertaking on Attachment.
    After an attachment, issued as a provisional remedy under the Code of Procedure, has been set aside, as not authorized by the facts of the case, an undertaking given to procure the discharge of property levied, on under the attachment cannot be enforced.
    Trial by the court.
    This action was - brought upon an undertaking given on behalf of a defendant, to release property levied upon under an attachment under section 240 of the Code of Procedure, in an action against one Mrs. Boxsius.
    Before judgment, a motion was made, upon affidavits, to vacate the attachment, and an order was made granting the motion. Judgment was subsequently recovered, and, it remaining unpaid, this action was brought on the undertaking. A decision on demurrer to the complaint is reported in 8 Abb. Pr. N. S., 171.
    The defendant subsequently amended his answer. The amended answer, after admitting the issue of the attachment, the giving of the undertaking sued on, and the consequent discharge of the attachment, and the recovery of judgment, denied all the other allegations of the complaint; and, for a further defense, the amended answer alleged as follows :
    “That said attachment was issued upon the alleged ground, as was falsely and fraudulently made to appear to the justice who granted said attachment, that said defendant Rebecca Boxsius, sued as Mrs. E. Boxsius, was about to remove and dispose of her property with intent to defraud her creditors.
    “ That at the time of the issuing of said attachment, or at any time prior or subsequent thereto, said Rebecca Boxsius was not removing or disposing, or about removing and disposing of her property with intent to defraud her creditors, and no grounds existed for the issuing of the said attachment, which fact was well known to the plaintiffs when they applied for and procured said attachment by fraud and deceit, in falsely and fraudulently making and presenting false and fraudulent affidavits to said court who granted the same.
    “And these defendants further say, that subsequently a motion was made by said defendant Boxsius to vacate and set aside said attachment upon the grounds that no fact existed at the time of the issuing of the said attachment to authorize the issuing of the same, and that she was not about to remove and dispose of her property with intent to defraud her creditors. That said motion was duly argued, and submitted to this court upon proof, who thereon made an order bearing date March 8, 1869, which said order was duly entered, thereby vacating and setting aside said attachment ; and a copy of such order is hereto annexed, marked B, and forms a part of this answer, and which still remains -in full force and virtue ; and thereby said attachment was and remains vacated and set aside on the grounds which are thereby decided, that no facts existed to sustain such attachment.
    “ That said motion was made and argued, and said order duly made and entered, whereby said attachment was vacated and set aside before the recovery of said judgment against the said Boxsius.
    “These defendants, further answering, say, that they were induced to execute the said instrument referred to in the complaint herein by reason of the statements made in the affidavits upon which said warrant of attachment was issued, and also by reason of the representations made by said plaintiffs that grounds upon which said attachment was procured were true, and existed and could be sustained, but all of which was false and untrue, and known to be so by the plaintiffs when the same were so made and presented, except the statement in said affidavit that the defendant Boxsius was indebted to them for goods sold and delivered to the amount stated in said affidavit, of which these defendants had no knowledge or information sufficient to form a belief.”
    The plaintiff moved for judgment on this answer as frivolous; which the court denied on the ground that it could not be so pronounced without argument; and the parties accordingly went to trial.
    It appeared on the trial that the attachment had been vacated on the ground that sufficient facts to authorize it.s issue did not exist at the time it was granted.
    
      A. H. Reavey, for the defendants,
    Argued that the vacating of the attachment operated as a total failure of the consideration for the undertaking, and that it was annulled.
    
      A. Blumenstiel, for the plaintiffs,
    Argued that the defendants, by the undertaking having unqualifiedly bound themselves to pay the judgment, the discharge of the attachment did not release them.
   Van Brunt, J.

The undertaking sued upon was given to release the debtor’s property from the levy of the attachment—in other words, the undertaking stands in the place of the property ; the consideration for the undertaking was the fact of the right to levy the attachment upon the property of the defendant named therein. The attachment having been set aside upon the ground that it was not properly issued, the consideration for the execution of the undertaking entirely fails; and consequently it cannot be enforced. If the property has been taken under the attachment, it must be returned upon the attachment being vacated.

Judgment must be given for defendants, with costs and allowance.

Judgment accordingly.  