BILDERSEE against ADEN

BILDERSEE against ADEN. Supreme Court, First District; Special Term, May, 1870. Undertaking on Dischabge of Pbopebty Attached. ■—Effect of Yacating Attachment. Vacating an attachment issued as a provisional remedy under the Code, upon the merits, on counter-affidavits, does necessarily exonerate the sureties in an undertaking previously given to obtain a discharge of property taken on the attachment. To have such effect, the order vacating the attachment should declare the undertaking void, or it should be shown that the attachment was without jurisdiction. Demurrer to answer. This action was brought by Barnet Bildersee and Montague Marks, against Joseph Aden and- Julius¡| Sarner. The defendants had given an undertaking under-section 241 of the Code of Procedure, in a former action brought by the same plaintiffs against one Mrs. Boxius, to procure a discharge of her property from seizure on an attachment issued in that action. The undertaking was in the usual form, to pay the amount of the judgment that might be recovered against her in the action. The complaint in the present action alleged the giving-of the undertaking, and that The attachment was subsequently discharged; and that plaintiffs afterward recovered judgment against Mrs. Boxius. The defendants answered, alleging that on a day named, and before the recovery of the judgment mentioned in the complaint, the attachment was duly, by order of the court, vacated and set aside, and that such order was still in full force, and the attachment did not, at the time of judgment, nor since then, exist; and that therefore the sureties were discharged. The grounds on which the attachment was vacated - were not alleged; but it was stated on the argument, that it was vacated.on opposing affidavits, and not upon a jurisdictional question: The plaintiffs demurred to the answer for insufficiency. A, Blumensiiél, in support of the demurrer, among other points, urged ;—I. It is not competent to establish a new condition (viz: that the undertaking should be void on a discharge of the attachment) by extrinsic evidence (1 Qreenl. on Eg., §§ 275-282 ; 2 Phil. Eg., 350'; 2 Piarle. Eg., 544, 548 ; 18 Johns. 45 ; 24 Wend., 419 ; 2 Duer, 202; 8 Johns., 190; 1 Cow., 249; 11 Johns., 201; 2 ' Panel/.; 202). II. The undertaking, and the statutes under which it was given, are to be construed to sustain the defendants’ liability (4 Hill, 384 ; 20 Wend., 561; 7 N.T., 97; 11 Id., 593 ; 1 Abb. Pr., 421; and see 15 W. T., 532). III. The undertaking was a voluntary one, and binds defendants, even had no attachment been issued (Coleman v. Bean, 3 Keyes, 94; S. C., 32 Mow. Pr., 370). IV. The discharge under section 241, is a matter distinct in itself, and not affected by any proceeding not falling within the purview o'f that provision (Grarbutt v. Hanff, 15 Abb. Pr., 189 ; Thompson v. Culver, 15 Id., 97 ; S. C.. 24 How. Pr., 286). H. Fox, for the defendant. As to what maybe shown in disputing the jurisdiction; and how far the sureties are .estopped, see Coleman v. Bean (14 Abb. Pr., 38; affirmed in 3 Keyes, 94; S. C., 32 How. Pr., 370). [MAJORITY — Ingraham, J.] Ingraham, J. The answer in this case merely alleges that the attachment has been vacated and discharged. It does not aver that the same was improperly issued, or that it was set aside for any such cause. It is usual to vacate an attachment on giving the undertaking, and if the order was made for this reason, that would not affect the undertaking. Even supposing that the attachment was vacated upon the merits, still it would not discharge an undertaking previously executed and acted on, without an order of the court, directing the same to be void—or by showing that the undertaking was given in a proceeding which was void for want of jurisdiction (Cadwell v. Colgate, 7 Barb., 253). The answer does not show such to be the case, and further evidence is required to bring this case within that rule. If it be shown that the attachment was issued without jurisdiction, .the undertaking given thereon may be worthless, under the rule in the case last cited, and cases therein referred to. Judgment for plaintiff on demurrer, with leave to defendants to answer in twenty days, on payment of costs.