#### RICHARD H. LEE and JAMES APPLE, Plaintiffs, v. EUGENE A. HOMER, Defendant.

*Sureties upon an undertaking for an*attachment— *they aA'e liable for costs awarded’ to the defendant, although the attachment be not formally vacated*— *Code of Gwil. Procedure, sec.*640.

The sureties upon an undertaking, given upon the issuing of an attachment, are Hable for the costs of the action, awarded to the defendant upon the dismissal of the complaint, even though the attachment itself ho never formally vacated.

Section 640 of the Code of Civil Procedure provides that “ the judge before granting the warrant must require a written undertaking on the part of the plaintiff, with sufficient sureties, to the effect that if the defendant recovers judgment, or if the warrant is vacated, the plaintiff will pay all costs which, may bo awarded to the defendant, and all damages which he may sustain by-reason of the attachment, not exceeding the sum specified in the undertaking; ” the words, “which he may sustain by reason of the attachment,” apply only to the word “ damages ” and not to the words “costs which may be awarded to-the defendant.”

OoNtroveRST submitted without action.

*Bolles, Waring <& Bolles,*for tbe plaintiffs.

*0. 8. Gary,*for the defendant.'

Smith, P. J.:

The facts of this case, as submitted, are that one ‘W’ickwire being-about to commence an action in the Supreme Court against the-*635plaintiffs herein, non-residents of the State, applied for a warrant of attachment against their property, and on said application presented to the judge to whom the same was made, the bond or undertaking on which the present controversy is based, executed by Homer, the defendant herein, alone, and entitled to said action, by which, after the usual and proper recital, said Homer undertook “that if the defendants in said action should recover judgment, or if the said warrant of attachment was vacated, the plaintiff would pay all costs which might be awarded to the said defendants Lee and Apple, and all damages which they might sustain by reason of the said attachment, not exceeding two hundred and fifty dollars.” Thereupon the warrant of attachment was issued and property of Lee and Apple was attached thereunder. Summons in the action was issued and served upon the defendants therein personally. Defendants answered; the case, being at issue, was placed apon the circuit ealendar for trial, and the plaintiff not appearing when the case was called, the complaint was dismissed with costs, on motion by defendants, and judgment accordingly entered in their favor for $126.14, as and for their costs and disbursements of defending the action. Execution was issued against Wickwire, the plaintiff in the action, and returned wholly unsatisfied. No application or motion was made by Lee and Apple to vacate the attachment. The costs and disbursements included in said judgment were made up only of the items allowed by law in an action iu which issue was joined without reference to the attachment, and were the same as if no attachment had been issued.

The plaintiffs herein contend that Homer, the surety on said undertaking for attachment, is liable to them for the amount of said judgment for costs and disbursements; while Homer denies such liability, he claiming that his undertaking covers only costs arising by reason of the attachment, and not the ordinary costs of suit. The undertaking, by its terms, complies with the provisions of section 640 of the Code, and th’e decision of the controversy depends upon the construction of that section, the language of which, so far as it affects the question, is as follows: “ The judge before granting the warrant, must require a written undertaking, on the part of the plaintiff, with.sufScient sureties, to the effect, that if the defendant recovers judgment, or if the warrant is vacated, the *636plaintiff will pay all costs, wbicb may be awarded to tbe defendant and all damages, wbicb be may sustain by reason of tbe attachment, not exceeding tbe sum specified in the undertaking, wbicb must be at least two hundred and fifty dollars.” There are two conditions on tbe happening of either of wbicb tbe undertaking becomes obligatory, namely, the recovery of judgment by tbe defendant in tbe action, and tbe vacating of tbe warrant of attachment. Either may happen without tbe other, that is to say, tbe defendant may recover judgment without tbe attachment being vacated except by tbe necessary effect and operation of tbe judgment in tbe defendant’s favor, no motion being made for a *vacatur,*or tbe attachment may be vacated on motion, notwithstanding the plaintiff may recover in the action. In tbe latter case, tbe parties executing the undertaking clearly would not be liable by force of it for the costs of tbe action, because none would be' awarded to tbe defendant, while in tbe former case, tbe costs of the action would be awarded to tbe defendant, but none would be awarded him “by reason of tbe attachment.” Strictly speaking no *costs*can be awarded to a defendant by reason of tbe attachment; in any case the expenses incurred by him for the fees of attorney and counsel in moving to vacate tbe attachment being included in the term “ damages.” *(Currie*v. Riley, 14 N. Y., Weekly Dig., 407.) In that respect tbe case is analogous to that of an injunction, in wbicb latter case it is well settied that tbe taxable costs of the defendant, necessary to obtain a dissolution of tbe injunction, may .properly be considered as damages so as to enable the defendant to recover them of tbe sureties in tbe injunction bond if he is unable to collect them of the plaintiffs in tbe suit. *(Edwards*v. *Bodine,*11 Paige, 223; *Aldrich*v. *Reynolds,*1 Barb. Ch., 613; *Andrews v. The Glenville Woolen Co.,*50 N. Y., 282; *Hovey*v. *The Rubber Tip Pencil Co.,*Id., 335; *Rose*v. *Post,*56 id., 603.)

Recurring to tbe section of tbe Code under consideration we are of tbe opinion that tbe words, *“*which be may sustain by reason of tbe attachment,” apply to tbe “ damages ” only and not to tbe “ costs which may be awarded to tbe defendant; ” tbe costs thus referred to being those of tbe action, and not those incurred in a motion to vacate tbe attachment, wbicb are regarded as damages.

This construction makes tbe liability created by an undertaking *637in an attachment case analogous to that of an undertaking upon an order of arrest. (Code, § 559.) Tbroop’s note to section 639 states that it was so framed as to correspond with section 559.

Note. — The balance of the cases decided at this term of the court will he found in (38 Hun) the next volume.— [Rep.

We think the construction contended for by the plaintiffs is correct and that they are entitled to judgment for the sum of $126.14, with interest from 28th May, 1884, the amount agreed upon in the case, with the costs allowed by statute.

BARKER and Bradley, JJ., concurred.*

Judgment ordered for plaintiffs for $126.14, with interest from 28th of May, 1884, the amount agreed upon in the case, with costs allowed by statute.