#### Henry W. Spang, Plaintiff, *v.*Stephen Y. Patterson, et al., Defendants.

(Supreme Court, New York Trial Term,

May, 1898.)

Order of arrest — Liability of sureties for the defendant’s loss of earnings while in jaiL

Sureties upon an undertaking, given in an action by the plaintiff .to procure an order of arrest, are liable to the arrested defendant for his loss of earnings for forty-two days, during which period he was unjustly incarcerated, by virtue of the order, as such a loss is a proper element of the damages which the defendant “ might sustain by reason of the arrest,” within the meaning of the undertaking.

Action upon an undertaking given to procure an order of arrest.

Lexow, Mackellar *&*Wells, for plaintiff.

Campbell & Hann, for defendants.

Scott, J.

The plaintiff in this action was arrested in an action brought against,him-by one Feigner. Upon the issue of the order *537of arrest, the defendants executed an undertaking in the usual form, whereby they undertook that if the said Spang should recover judgment in the action against him, or if it should finally be decided that the plaintiff in said action was not entitled to an order of arrest, then they, the sureties on the undertaking and defendants in this action, would pay all costs which might be awarded to said Spang, and all damages which he might' sustain by reason of the arrest, not exceeding the sum of $500.. The undertaking having been duly approved, Spang was arrested by the sheriff, and actually incarcerated for the period of forty-two days. The action finally went in his favor and he recovered a judgment for. costs against the plaintiff Reigner for the sum of $320.22, no part of which has been paid to him. The defendants conceded upon the trial their liability to pay the judgment for costs, and .offered no evidence to show that the whole amount thereof did not directly accrue from the arrest or from proceedings necessitated by the arrest. The only question litigated upon the trial was, whether or not the plaintiff’s right to a recovery was limited to such costs and interest thereon, or whether the plaintiff might recover such other damages as he appears to have suffered. It was said by the General Term of this court that such an undertaking as forms the basis of this action *“*is designed to cover taxable costs and such other legitimate - damages as flow from the arrest and are made necessary by it, such as counsel fees and expense in moving to vacate the arrest, and loss of time occasioned the arrested party in getting bail and in and about moving for his discharge.” Bamberger v. Kahn, 6 N. Y. St. Repr. 707. It is well settled that the plaintiff in an action like the present cannot recover the same damages, or damages estimated upon the same basis, as can be recovered by a plaintiff suing for false imprisonment, but the authorities seem to ¡hold that he may recover all damages, not exceeding the amount of the Undertaking, which naturally and necessarily result directly from the issuance and enforcement of the order of arrest. In the present case the plaintiff was actually confined in jail for forty-two days. At the time of his arrest, and for some time prior thereto-, he had been earning by his own exertions about $25 a week, and during the period of his imprisonment, and as a direct result thereof, he was prevented from earning this sum or any sum whatever. I think that this loss was clearly a damage resulting directly from the issuance and enforcement of the order of arrest. The undertaking was for $500. The judgment for costs, liability for which is conceded, with interest, amounts to *538$361.34. I think that the difference between these two sums ($138.66) is well within, the actual damages suffered by plaintiff. I, therefore, direct a judgment for the plaintiff for the sum of $500, with costs.

Judgment for plaintiff, with costs.