Bildersee v. Aden , 62 Barb. 175 ( 1872 )

By the Court,

Ingraham, P. J.

The learned judge before whom this action was tried, was in error in holding that any consideration was necessary to uphold an undertaking given on a release of an attachment. The release of the property levied on was a sufficient consideration, if any was necessary; but where the attachment is issued and an undertaking is given "to discharge under the provisions of the statute, no consideration is necessary either to be inserted therein, or to be proven on the trial. The statute (Code, §§ 240, 241,) provides that on application to discharge the attachment the defendant shall deliver to the court or officer an undertaking, &c. It is a statutory undertaking, for which no consideration is necessary. This has been repeatedly held. In Thompson v. Blanchard, (3 N. Y. 335,) it was held that where a statute required an undertaking to be entered into to give a right of appeal, it was valid, although it did not express a consideration. It was also • there said that the statute of frauds only applied to common law agreements, and not to instruments created .under special statutes. This case was approved in Doolittle v. Dinny, (31 N. Y. 350,) and Johnson v. Ackerson, (40 How. Pr. 222.)

In Coleman v. Bean, (32 How. Pr. 370,) an undertaking purporting to be issued to discharge an attachment, was held valid, although no such attachment was ever issued.

It is urged for the respondent that the attachment having been set aside, the undertaking fell with it, and ceased to be a valid security. It is, settled that if the attachment was improperly issued, and'is afterwards set aside on the ground that there was no jurisdiction to sustain it, thq undertaking, as well as the attachment, is void. This was the case in Cadwell v. Colgate, (7 Barb. 253,) where the affidavit on which the attachment was issued merely stated the belief of the party, and did not authorize the issuing of the attachment.'

[First Department, General Term, at New York, April 1, 1872.

Ingraham P. J., and Cardozo, Justice.]

In the present cáse, the.affidavit on which the attachment issued was sufficient to call upon the officer to whom it was presented, to exercise his judgment in granting it, and the subsequent proceedings to set it aside did not raise the jurisdictional question. In such cases the rule, I think,' is that a bond or undertaking remains valid,' although the attachment is subsequently set aside; unless the court expressly orders the undertaking, also, to be canceled. It is only when there is a total want of evidence on some essential point, that the officer fails to acquire jurisdiction. (Matter of Faulkner, 4 Hill, 598. Haggart v. Morgan, 5 N. Y. 422.)

From the cases above cited, it is apparent that the party, giving the undertaking could not set up, as matter of defense -to an action upon the same, that the grounds on which it was issued were not true. The giving of the un-' dertaking concludes the parties on that point.

The fact of the setting aside the attachment upon the same grounds does not alter the character of the, defense, and unless the court, when the attachment is vacated, makes the same order as to the undertaking, it is left in force, and such a defense cannot be made to it.

Judgment reversed, and new trial ordered; costs to abide the event.