#### Samuel Bruck, Respondent, *v.*Joseph Feiner et al., Appellants.

(Supreme Court, Appellate Term,

March, 1899.)

Action on attachment bond given by third party claimant to plaintiffs — Measure of damages.

In an action on a bond, given to the plaintiffs in an attachment action by a third party who claimed to own the property attached, the amount of the judgment for the plaintiffs in the attachment action is not a proper measure of damages, as section 2913 of the Code of Civil Procedure limits the recovery to the value of the property attached, with interest, and that value must be shown by proof independent of said judgment.

Appeal by the defendants from a judgment rendered in the Municipal Court, second district, borough of Manhattan, in favor of plaintiff.

*725Sanders *&*Rosenstein, for appellants.

Louis Levy, for respondent.

Freedman, P. J.

In an action began by the firm of Deiner, Kerbel & Co. against Joseph Feiner, an attachment was obtained and a levy made upon property claimed to be owned by Leo Polascek.

Thereupon Polascek gave the bond required by section 2912 of the Code of Civil Procedure, with Max Schwartz as surety, and the goods taken under the attachment were delivered to Polascek. Deiner, Kerbel *&*Co. assigned their cause of action upon the bond aforesaid to this plaintiff, who instituted this action against these defendants. The case is very voluminous and presents numerous exceptions. The judgment-roll in the action in which Deiner, Kerbel *&*Co. were plaintiffs and Joseph Feiner was defendant, was introduced in evidence, and showed the amount of that judgment to be $188.16. There was absolutely no testimony as to the value of the property taken by virtue of the attachment and delivered to the defendant Polascek, pursuant to his undertaking. The court below charged the jury, that if they found a verdict for the plaintiff in this action they must find for the sum of $188.16, the amount of the judgment in the prior action. To that charge the defendants’ counsel duly excepted. The defendants’ counsel then asked the court to charge the jury that, if they should find a verdict in favor of the plaintiff, they could only award the value of the property attached under the attachment. This was also refused, the court saying, “ I refuse to charge that; I charge them to bring in a verdict, in that event, for $188.16.” An exception was duly taken by defendants’ counsel. Subsequently the jury rendered a verdict in favor of the plaintiff for said sum of $188.16, which verdict defendants’ counsel moved to set aside on the ground that it was against the law and the evidence, and upon all the grounds specified in section 999 of the Code. That motion was denied and an exception thereto duly taken. The rulings referred to clearly constituted error. The value of the property attached might have been much less than the amount of the judgment and the judgment itself was no evidence of value.

Section 2913 of the Code of Civil Procedure as well as the bond sued upon, expressly limit the plaintiff’s recovery to the value of *726the property attached and delivered to the claimant with interest thereon from the time of the delivery.

Such value must be established independently of the judgment recovered. Ho testimony concerning such value having been given and the rulings above referred to being clearly erroneous, a new trial must be had. The views expressed render it unnecessary to consider the other exceptions in the case.

The judgment should be reversed and a new trial ordered, with costs to the appellants to abide the event.

MacLean and Leventritt, JJ., concur.

Judgment reversed and new trial ordered, with costs to appellants to abide event.