The undertaking on which the plaintiff brought-this action provided that “ if the defendants recover judgment herein, or if it is finally decided that the plaintiff was not entitled to the order of arrest, the plaintiff will pay all costs which may be awarded to the defendants, and all damages which they, or either of them, may sustain by reason of the arrest, not exceeding the sum of two hundred and fifty dollars.”
It is urged by the defendants that this action was prematurely brought. At the time of its commencement judgment had not been rendered against the plaintiff in the previous action, and although the order of arrest had been vacated, this had been done on the papers on which such order was granted, and not upon the merits.
We are inclined, although with some doubt, to think that this contention should not be sustained. The undertaking made the sureties -liable “if it is finally decided that the plaintiff was not entitled *134to the order of arrest.” If the word “ an ” instead of “ the ” had been used in the instrument a different question would arise. The sureties bound themselves to pay the damage. the plaintiff herein should sustain by reason of the order of arrest in fact granted. The decision of the judge vacating that order should be regarded as a final determination that the plaintiff was not entitled thereto, unless such decision should be overruled on a subsequent motion made by the plaintiff in that action or on appeal:
We are also of the opinion that it was not necessary for the plaintiff to obtain leave of the court under the provisions of section 814' of the Code of Civil Procedure to bring this action. That section, by its terms, applies to bonds or undertakings given to the People, or to. a public officer.
But a new trial must be granted, for the reason that the evidence given below was not sufficient to sustain a judgment for $250, and also because of some inadvertent errors of the trial judge in his charge to the jury.
The plaintiff, by the provisions of the undertaking set out in the complaint, was entitled to recover his counsel fees and expenses in, moving to vacate the order of arrest up to the time of the commencement of the action. Such expenses were stated to be fifty dollars, of which forty dollars had been paid. He was also entitled to recover for loss of his time during his imprisonment. At the time of his arrest it was shown that he was earning eighteen dollars per month, and his imprisonment lasted for a period of five months. His. total damage, therefore, for loss of time was ninety dollars. The plaintiff testified that after his imprisonment ceased he could obtain no employment for some time, and then worked for three dollars a month, but he fails to give any sufficient data from which the jury could have estimated his damage for loss of time after his imprisonment, if in this action he was entitled to recover therefor. Ho other damage for which the defendants were liable as sureties on the undertaking in question was shown, and it follows 'that the judgment for two hundred and fifty dollars was unauthorized.
The learned trial court instructed the jury that the suffering the plaintiff endured from his imprisonment, of either body or mind, was a proper element of damage to be considered. The defendants requested the court to charge that “ the jury cannot ■ award- any *135damages because of any disgrace which has' attached.” The court declined to so charge. In effect, therefore, the learned trial court instructed the jury that the plaintiff could recover against the sureties the same damages he could have recovered against the defendant Rutherford in an action for false imprisonment.
I think the court erred in thus instructing the jury. The true rule in regard to the damages recoverable on an undertaking given on obtaining an order of arrest is stated in Bamberger v. Kahn (43 Hun, 411): “ It is now settled that an order of arrest which has befen granted by an officer having jurisdiction, and upon such officer obtaining jurisdiction of the subject-matter, protects parties from an action for false imprisonment. And this is the fact when the order has been subsequently vacated. (Marks v. Townsend, 97 N. Y. 590.) The undertaking to pay damages by reason of the arrest is not, therefore, to provide for a personal wrong or injury. It is a paper designed to cover taxable costs to be awarded in the action, and such other legitimate damages as flow from the arrest and are made necessary by it, such as counsel fees and expense in money to vacate the arrest and loss of time occasioned the arrested party in getting bail and in and about moving for his discharge.” (See, also, Spang v. Patterson, 23 Misc. Rep. 536.) For the reasons above suggested the judgment should be reversed and a new trial granted, costs to abide the event.
All concurred.
Judgment and order reversed and a new trial granted, costs to abide the event.