Opinion
June 23, 1939.
Morris Berler, for the appellant.
Samuel Rubin, for the respondents.
Judgment and order unanimously reversed upon the law and a new trial granted, with thirty dollars costs to plaintiff to abide the event.
This is an action to recover on a statutory undertaking damages sustained by plaintiff by reason of an attachment. Plaintiff seeks to recover counsel fees expended for all legal services subsequent to the levy of the attachment. In the action in which the attachment was issued the defendant therein was served by personal service of the summons. The attachment which was levied was not the basis of the court's jurisdiction either over the person of the defendant or the subject-matter of the action. In fact, the attachment was issued after the service of the summons upon the defendant in that action. The action having been instituted by personal service subjected the then defendant to the expense of engaging counsel in the preparation and conduct of his defense upon the issues raised by the pleadings. Except for the bringing of the motion to obtain a vacatur of the attachment, the defendant's legal expenses were not increased or affected by the levy of the attachment for the reason that the then defendant was subjected to possible liability on the issues involved in the action and not by the warrant of attachment. In other words, the fees of counsel incurred in the defense in the principal suit were not the natural and direct consequence of the levy of the attachment. ( Thropp v. Erb, 255 N.Y. 75.) Plaintiff, therefore, is not entitled to recover counsel fees for the defense of the action. However, recovery may be had for the legal expenses incurred, if any, in seeking to vacate the attachment ( Tyng v. American Surety Co., 174 N.Y. 166) and damages, if any, by reason of the detention of the bank deposit. (See Northampton National Bank v. Wylie, 52 Hun, 146; affd., 123 N.Y. 603.) No opinion.
Present — LEWIS, SMITH and McCOOEY, JJ.