It is now settled that an order of arrest which has been 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. Such right of action is assignable under section 1910 of the Code of Civil Procedure. The assignment transferred the costs proper which have been paid. The extra expense and damage to the party were also transferred by it, and these have not been paid and are recoverable upon being proven in an action on the undertaking. The counter-claim set up by the defendants does not upon *413the record destroy the plaintiffs action. It may be an off-set or counter-claim and may destroy the plaintiff’s cause of action, but it is denied in the pleadings, and upon a new trial the plaintiff may prove under the pleadings that there is no such claim.
The judgment should, therefore, be reversed and a new trial granted, costs to abide event.
Pratt, J., concurred.Exceptions sustained, and new trial granted, costs to abide event.