
    Howard A. Sperry, Resp’t, v. Theodore Hellman et al., App’lts.
    
      (New York Common Pleas, General Term,
    
    
      Filed April 6, 1891.)
    
    1. Undertaking—Arrest—Liability op sureties.
    An undertaking given pursuant to § 559 of the Code on the arrest of a defendant is not intended to secure to such defendant the general costs of the action and counsel fees incurred in defense of that action, but only the additional costs and additional expenses and damage to which he may be subjected by reason of his arrest. Hence, in an action on such an undertaking, it is error to refuse to charge that the plaintiff could not recover the costs awarded to him and a co-defendant, not arrested, jointly in the action in which he was arrested.
    2. Same.
    In the action in which plaintiff was arrested a judgment was entered by default, which was opened on the application of defendants as sureties so far as to allow them to litigate the issues raised by the pleadings. Held, that such judgment ended "plaintiff’s liability to arrest, and the _ sureties were not liable for counsel fees and other expenses subsequently incurred by him.
    3. Trial—Charge—Direction to disregard evidence.
    It is the right of a party to have the jury directed to disregard evidence which is wholly irrelevant and incompetent, and which has been admitted without objection, and a refusal to so direct constitutes error for which a, reversal must be ordered.
    Appeal from judgment of the general term of the city court, affirming a judgment for plaintiff in an action to recover against sureties upon an undertaking given pursuant to § 559 of the Code of Civil Procedure, to secure an order of arrest of plaintiff in an action in the supreme court.
    
      Howard A. Sperry, for resp’t; Eugene Seligman, for app’lts.
   Bischoff, J.

In April, 1884, the Metropolitan Concert Company (Limited), instituted an action in the supreme court to recover damages for trespass against Howard A. Sperry and Robert W. Reid, and an order for the arrest of both defendants was issued therein; but the order was executed as to Sperry, who alone was arrested. On the application for the order of arrest, the usual undertaking required by § 559 of the Code of Civil Procedure was given, Theodore Heilman and Emil Carlsbach becoming sureties, the limit of their liability being $400.

Pursuant to the terms of that undertaking the sureties jointly and severally agreed, “that if the defendants in the action do recover judgment therein, or if it is finally decided that the plaintiff is not entitled to the order of arrest, the plaintiff in said action will pay all costs which may be awarded to the defendants and all damages which they may sustain by reason of the arrest in said action and not exceeding the sum of four hundred dollars.”

Sperry and Reid having appeared and defended, the action was reached for trial on March 31, 1885, on which day because of the plaintiff’s default it was dismissed and on April 15,1885, judgment for dismissal of the complaint with $273.87 costs was duly entered in favor of the defendants, Sperry and Reid. In November, 1885, Sperry brought an action in the city court against the sureties Heilman and Carlsbach to recover upon their undertaking above mentioned; and the sureties thereupon applied to the supreme court to have the default of the Metropolitan Concert Co. (Limited), opened and the judgment in favor of Sperry and Reid vacated and set aside. This application, however, was only granted to the extent of permitting the sureties to try the issues raised by the pleadings in the action against Sperry and Reid. Such a trial was had and resulted in favor of the Metropolitan Concert Co. (Limited); but on appeal to the general term of the supreme court and court of appeals the proceedings of the trial court were reversed and judgment absolute was rendered in favor of Sperry and Reid.

The action in the city court having in the meanwhile remained in abeyance was reached for trial, which terminated in a judgment in favor of the plaintiff therein, entered upon the verdict of a jury. From this judgment the defendants appealed to the general term of the city court where, upon plaintiff’s filing a stipulation to that effect, it was reduced and as reduced affirmed. The reduction of the judgment was imposed upon the plaintiff' upon the ground that the recovery was excessive in so far as the liability of the defendants was not limited upon the trial to the amount of their undertaking, and that if such limitation had been made the recovery by plaintiff would not have exceeded the amount to which the judgment was reduced, after allowing the defendants the same offsets which were allowed in the trial court.

From the judgment of affirmance the defendants have appealed to this court, and it is apparent that the grounds urged for reversal are in no manner affected by the action of the general term of the court below, in requiring plaintiff to waive so much of the recovery as was held to be excessive.

Appellants assign as error that the trial court permitted a recovery by the plaintiff of the costs recovered against the Metropolitan Concert Co. (Limited), although such costs by the judgment therefor had been awarded to the plaintiff in this action, and his co-defendant Reid in the supreme court action, jointly, which ruling was duly objected to and an exception taken; and further that the trial justice, though specifically requested to do so, refused to instruct the jury that they should not in estimating the damages to which plaintiff was subjected by reason of the arrest consider any expense incurred by him for counsel fees subsequent to the time it was finally determined that the plaintiff in the supreme court action was not entitled to the order of arrest. This refusal was also duly excepted to.

We have not overlooked the additional grounds urged by appellants for the reversal of the judgment, but as we are of the opinion that those specifically noticed by us are sufficient to demand a retrial of the action, it is unnecessary to discuss others, which may not again occur.

It is plainly apparent from the record before us that the trial of this action proceeded upon the mistaken theory that an undertaking given pursuant to the requirements of § 559 of the Code of Civil Procedure upon the arrest of a defendant is intended to secure to such defendant, if it be finally decided that the plaintiff was not entitled to the order of arrest, the general costs of the action and the counsel fees incurred in the defense of that action, together with such other damages as defendant may have sustained and which may have accrued directly from the arrest. That such is not a correct interpretation of the section mentioned has been lately determined by the general term of this court in Sutorius v. North, the opinion wherein was filed March 2, 1891. 36 N. Y. State Rep., 873.

In the case cited it was determined that the true intention of the Code of Civil Procedure is to secure indemnity to an arrested defendant only to the extent to which he may have been inconvenienced and may have suffered expenses over defendants not arrested.

Ordinarily, a defendant has no redress for the expense to which he may have been subjected in defending against the plaintiff’s alleged cause of action, and the taxable costs represent the limit of his indemnity in the event of plaintiff’s defeat, and as no action for damages for false arrest would lie if the arrest was had upon legal process, Marks v. Townsend, 97 N. Y., 590, the undertaking required by § 559 of the Code was intended to secure to the defendant the additional costs and the additional expense and damage to which he might be subjected by reason of his arrest. That this is so is apparent from the provisions of § 3268 of the Code of Civil Procedure, pursuant to which a non-resident plaintiff may be required to give security for costs. If a non-resident plaintiff has given such security for costs, and upon causing the arrest of the defendant has given the further undertaking required by § 559 of the Code, and the action results in a judgment for dismissal of the complaint with the costs of the action to the defendant, could it be contended that the plaintiff’s payment of the costs alone would cancel the undertaking given to secure their payment, and at the same time entitle the plaintiff to a credit of an equal amount upon the undertaking to secure the order of arrest? If so, should both undertakings have been in equal amounts, it must be conceded that upon the payment of one, the plaintiff can discharge two separate and distinct obligations. If-it be admitted that he cannot do this, then it inevitably follows that the costs secured by the undertaking upon the order of arrest are not the costs intended to be secured by the undertaking required of a non-resident plaintiff. This illustration should suffice to prove that our determination in Sutorias v. North Was correct, but if another illustration is required, it may be found in the case at bar.

The judgment for costs recovered against the Metropolitan Concert Company (Limited), in the supreme court action was for the general costs of that action and was properly awarded to both defendants therein, and now exists in them as a joint demand. Eeid was not arrested and is not a proper party to an action by Sperry to recover damages sustained by the latter by reason of his arrest, and he cannot, without joining Eeid as plaintiff, recover the costs awarded to him and Eeid because the right to such costs constitutes a joint demand, the interest of each of the obligees extending to every part of the demand. Wharton on Contracts, vol. 2, § 814; Dob v. Halsey, 16 Johns., 34. If, however, it be held that the costs intended to be secured by the undertaking given upon the arrest of a defendant are for the additional costs which accrued from the arrest, such costs would have been awarded to the arrested defendant only, and he alone would be entitled to the payment thereof.

Again, if the plaintiff causing the arrest of the defendant pay the costs of the action recovered against him, and such costs should exceed in amount the sum named in the undertaking riven to secure the order of arrest, and the undertaking should be íeld to apply to the general costs of the action, the defendant would be without redress for the damage sustained by him by reason of the arrest, since the sureties are not liable for more than the aggregate sum of costs and damages not exceeding the sum specified in the undertaking, and no action lies against the plaintiff jausing the arrest, though it be decided that the arrest was vrongful.

We are, therefore, of the opinion, that the defendant’s request that the court instruct the jury that plaintiff could not in this action recover the costs which had been awarded to him and his co-defendant in the supreme court action jointly, was proper, and that the refusal so to charge was error.

Defendant’s request that the court direct the jury to disallow as a part of plaintiff’s damage such expense for counsel fees as the plaintiff had incurred subsequent to the judgment of April 15r 1885, dismissing the complaint in the action of the Metropolitan Concert Company (Limited) v. Sperry et al., was also proper and should have been granted, and the exception to the refusal was well taken.

Without now passing upon the effect remaining of that judgment, after it had been so far vacated as to allow the sureties upon the undertaking to secure the order of arrest to try the issues upon' the pleadings in that action, it is sufficient for the purposes of this appeal that the judgment was relied upon by the plaintiff in this action and received by the court as a final determination that the plaintiff therein named was not entitled to the order of arrest issued in the action in which such judgment was rendered. Assuming that the judgment had the effect claimed for it, the determination thereby made was reciprocal and conclusive upon both parties to this action, and no damage could thereafter have accrued to the plaintiff herein by reason of his arrest in that action. The judgment ended his liability to arrest, and the expenses for counsel fees incurred by plaintiff subsequent to this judgment in the trial of the issues prosecuted by the sureties and the subsequent appeals to the general term of the supreme court and to the court of appeals were not rendered necessary to enable the plaintiff herein to extricate himseli from his arrest or liability to arrest, but to defend himself againsi a recovery by The Metropolitan Concert Co. (Limited), in the action commenced by it, and such expense is not a part of the damage for which indemnity was intended by the undertaking upon which this action was brought. Counsel fees are of course recoverable as a part of such damage, but only such proportior of the counsel fees as were reasonably necessary to defend agains the arrest or to cause the order of arrest to be set aside, and suet could obviously not have been the object of retaining counse after it had already been determined that the plaintiff was n< longer liable to arrest.

We note plaintiff’s contention that defendants’ exceptions to th< refusal of the court to instruct the jury to disregard the evidenci concerning expenses incurred subsequent to the judgment of Apri 15, 1885, are without force because defendants permitted sue! evidence to be received without objection and failed to make i motion to have it stricken out.

The point is not well taken and the case relied upon by plain! iff’s counsel, Ganson v. Tifft, 71 N. Y., 48, 55, does not suppoi it. An examination of the opinion in that case shows that th refusal by the trial court to direct the jury to disregard certai: evidence, which was received without objection and concernin which no motion was made to have it struck out, was sustained upon the ground that the evidence was relevant and had a bearing upon the amount of damages to be awarded. It is the right of a party to have the jury directed to disregard evidence which is wholly irrelevant and incompetent, and which has been admitted without objection, and a refusal so to direct constitutes error for which a reversal must be ordered. Gawtry v. Doane, 51 N. Y., 84; Marks v. King, 64 id., 628 ; Pontius v. People, 82 id., 339, 347; Platner v. Platner, 78 id., 90, 101.

The judgment appealed from must be reversed, and a new trial ordered, with costs to abide the event.

Daly, Oh. J., and Pryor, J., concur.  