Schuyler v. Englert
New York Marine Court
Appeal from a judgment rendered at trial term in favor of the plaintiff. The action was brought by the plaintiff, as assignee of August G. Genez, to recover $250 damages, on an undertaking given upon obtaining an order to arrest Genez in an action upon contract, wherein fraud was charged as the ground of arrest. The undertaking is in the form prescribed by section 559 of the Code of Civil Procedure.
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Appeal from a judgment rendered at trial term in favor of the plaintiff. The action was brought by the plaintiff, as assignee of August G. Genez, to recover $250 damages, on an undertaking given upon obtaining an order to arrest Genez in an action upon contract, wherein fraud was charged as the ground of arrest. The undertaking is in the form prescribed by section 559 of the Code of Civil Procedure. Genez, the defendant in the action, moved to vacate the order of arrest, and an order was entered by consent, granting the motion, “upon the defendant stipulating not to bring an action for false…
1Opinion of the CourtMcAdam, J.
—It is clear that, independently of the order vacating the arrest, the plaintiff’s assignor had no right of action, and this order, with the stipulation given under it, in terms release the plaintiff in that action (the principal on the undertaking) from all liability for false imprisonment or malicious prosecution. This liability extended to and embraced counsel fees and the like, because these elements of damage, whether called “ special damages ” or by any other name, are properly recoverable in an action for false imprisonment or malicious prosecution (Field on Damages, 538, 544 ; Woods…
2Cited by1 opinion
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