App. Div.] FIRST DEPARTMENT, FEBRUARY TERM, 1902. stock in his complaint and produces it upon the trial and tenders a surrender thereof and the decree requires it to be deposited with the clerk of the court for the benefit of the defendant. Where it appears that a portion of the moneys paid by the plaintiff under the contract has been invested in real estate, the title to which is in the defendant, the court may properly adjudge that the plaintiff is entitled to a lien on such real estate to the extent of his money invested therein and interest. APPEAL by the defendant, Ella V. Eisenhuth, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 14th day of June, 1901, upon the decision of the court rendered after a trial at the New York Special Term. Charles W. Lefler, for the appellant. Charles A. Decker, for the respondent. LAUGHLIN, J.: This suit is in equity to cancel a contract for the purchase of 700 shares of the capital stock of the Eisenhuth Horseless Vehicle Company and to recover the moneys paid on account of such purchase. The purchase was consummated on the 17th day of November, 1899, and the stock was delivered to plaintiff, who, by check, paid $10,000 down and agreed to pay $20,000, that being the balance of the purchase price, within six months. The plaintiff alleged that he was induced to make the contract by false and fraudulent representations to the effect that the automobiles which said company was incorporated to manufacture, under the protection of patents owned by it, had passed the experimental stage, had been tried, tested, and were an assured success; so much so that the company had contracts for the manufacture and sale of automobiles upon which its profits would amount to over $1,000,000, and that it had one order alone from a prominent New York ice company for 1,000 auto trucks, which would yield a profit of $500,000. These allegations were sustained by the evidence introdueed upon the trial. Not only did the company not have these or any other contracts, but it was still experimenting with a motor which had stood a shop test and was attempting to improve upon and perfect it. The evidence fairly justified the finding that the representations FIRST DEPARTMENT, FEBRUARY TERM, 1902. [Vol. 69. were fraudulently made for the purpose of inducing the plaintiff to purchase the stock, and that he relied thereon in so doing. These false representations were made, not by the defendant, but by her husband, and it is contended that they were not authorized by her. There was evidence of an express admission on her part that her husband was authorized to sell her stock, and that he managed all of the sales of her stock. She did not directly participate in the negotiations for the sale of the stock, but permitted the same to be conducted by her husband, and she executed the contract thus induced and accepted the fruits of his services. For the purpose of the relief sought in this action, his fraud was her fraud. Evidence that similar representations were made by the husband at or about the same time to two other parties, who also through him purchased other shares of the capital stock of this corporation owned by her, offered by plaintiff, was received under defendant's objection that it was incompetent, and a motion to strike it out was denied. Her counsel excepted to each of these rulings, and he relies on Hubbell v. Alden (4 Lans. 214, 225) to sustain his contention that the evidence was incompetent. That was also an action to rescind a contract for the purchase of stocks on the ground of fraud and to recover the amount paid. The court recognized the existence of the rule permitting evidence of similar contemporaneous frauds, but did not deem the other fraudulent representations proved sufficiently contemporaneous to justify the reception of the evidence. The Court of Appeals, however, reversed the General Term and sustained the recovery as to a party against whom this evidence was received and, without discussing the competency of the testimony, cited this evidence in the opinion as tending to establish the fraud. (Hubbell v. Meigs, 50 N. Y. 480, 491.) The evidence of the false representations made to the plaintiff was ample to establish the fraud and sustain the judgment without the testimony relating to similar contemporaneous representations; but we consider that evidence competent as tending to establish the fraudulent intent. (Cary v. Hotailing, 1 Hill, 311; Amsden v. Manchester, 40 Barb. 158; Naugatuck Cutlery Co. v. Babcock, 22 Hun, 481; Miller v. Barber, 66 N. Y. 558, 568; Baldwin v. Short, 125 id. 553, 559; Boyd v. Boyd, 164 id. 234.) The false representations were made on a prior sale of similar App. Div.] FIRST DEPARTMENT, FEBRUARY TERM, 1902. stock to plaintiff some months before and were not expressly reiterated on the sale of the stock in question. We think the court was warranted in finding that they were calculated and intended to induce the last purchase and that plaintiff was justified in relying thereon. The point is also made that the action cannot be maintained because plaintiff did not tender a return of the stock before bringing the action. The plaintiff brought this action within a month after discovering the fraud, and in the meantime he did nothing in affirmance of the contract or that could in any manner mislead or prejudice the defendant. In his complaint he offers to return the stock, and he produced it upon the trial and tendered a surrender thereof, which was refused. The decree requires it to be deposited with the clerk of the court for the benefit of the defendant. The suit being in equity, this is all that is required. (Delano v. Rice, 23 App. Div. 327, 331; Littlejohn v. Leffingwell, 47 id. 377, 379; Vail v. Reynolds, 118 N. Y. 297, 302; Berry v. A. C. Ins. Co., 132 id. 49, 55.) Part of the consideration paid by plaintiff having been invested in real estate, the title to which was in defendant, the court properly decreed that plaintiff was entitled to a lien thereon to the extent of his money invested therein and interest. No other question requires discussion. The judgment should be affirmed, with costs. VAN BRUNT, P. J., PATTERSON, INGRAHAM and HATCH, JJ., concurred. Judgment affirmed, with costs. THOMAS M. TYNG, Respondent, v. AMERICAN SURETY COMPANY, Appellant. -- Surety on an undertaking given on an application for an attachment — liability for a174 NY 166 the costs of unsuccessful proceedings to vacate and also of the trial. Where a motion to vacate an attachment, although at first successful, is denied on appeal, but not apparently upon the merits, and the action is thereafter tried and results in a judgment dismissing the complaint, the surety upon the undertaking given to secure the warrant of attachment is liable for the costs and expenses of the proceedings to vacate the attachment as well as for the costs and expenses of defending the action itself. FIRST DEPARTMENT, FEBRUARY TERM, 1902. [Vol. 69. APPEAL by the defendant, the American Surety Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 16th day of April, 1901, upon the verdict of a jury, and also from an order entered in said clerk's office on the 11th day of April, 1901, denying the defendant's motion for a new trial made upon the minutes. James E. Kelly, for the appellant. Henry W. Leonard, for the respondent. LAUGHLIN, J.: The action is on an undertaking given on procuring a warrant of attachment. The action in which the attachment was issued was brought by James E. Kelly against Lucinda Baker, a non-resident, who, however, was served personally within the State. The complaint in that action alleged a cause of action on an agreement in writing, by which the defendant promised to pay to the plaintiff or to his order the sum of $2,500 the day after the will of Eliza Schneider, deceased, was admitted to probate and upon the plaintiff furnishing to the defendant a general release from J. Henry Schneider. It was alleged that the will was admitted to probate, that the release was tendered and payment demanded and refused. The answer admitted the probate of the will, but put in issue the other allegations, and alleged, in effect, that the execution of the agreement upon which the action was based was procured by frand and duress. The attachment was obtained, after issue joined, upon the ground of the non-residence of the defendant, and a levy was made thereunder upon funds in two banks to her credit. The defendant made a motion to vacate the attachment upon affidavits setting up her defense, showing that the funds levied upon were trust funds that came into her hands as the executrix of the will of said Eliza Schneider, deceased. The motion was granted, but upon appeal the order was reversed. (Kelly v. Baker, 26 App. Div. 217.) Subsequently, upon the trial of the issues, the complaint was dismissed with costs, which the plaintiff paid. The defendant Baker thereafter assigned her claim for "all damages" sustained "by reason of the App. Div.] FIRST DEPARTMENT, FEBRUARY TERM, 1902. said attachment" to the plaintiff herein, who subsequently brought this action. Upon the trial the plaintiff proved separately the reasonable costs and expenses of defending the action and of the proceedings to vacate the attachment. The court submitted these questions to the jury, and by consent reserved the right to direct a verdict, after the discharge of the jury, in accordance with what might be deemed the law of the case. The costs and expenses of defending the action. were assessed by the jury at $250, and of the proceedings to vacate the attachment at $150. It was conceded that the maximum liability on the attachment undertaking for the costs of the action and the damages sustained by reason of the attachment, with interest, was the sum of $290, and that the taxable costs already paid, with interest, aggregating $152, should be deducted, leaving the remaining maximum liability $138. The court, pursuant to the stipulation, subsequently directed the entry of a verdict for plaintiff for that amount. No point is made by appellant with reference to the amount of the verdict or the computation by which the balance was ascertained. It seems to be assumed that the verdict was authorized if appellant was liable for either counsel fees on the proceedings to vacate the attachment or on trial of the action; but it is contended that neither were recoverable. It is argued that inasmuch as the motion to vacate the attachment, though at first successful, ultimately failed, the expenses thus incurred were not necessary damages sustained by the attachment for which the surety is liable. In other words, it is claimed that the right to collect these expenses depended upon the success of the motion. Such a ruling would in effect require a defendant to be his own lawyer. He would at his peril incur expense in consulting counsel or attempting, on the advice of counsel, to free his property from a lien, which might be continued until the trial owing to compliance by plaintiff with the forms of law, but which never should have been asserted or acquired because plaintiff in fact had no cause of action. No controlling precedent has been cited or found which establishes such an unjust rule. It has been decided that counsel fees incurred in an unsuccessful effort in opposition to a motion for an injunction are not embraced within an undertaking |