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FORM No. 247.

Suggestion of death of a party.87 [Title of court and cause.]

The plaintiff, A. B., by M. N., his attorney, hereby suggests to the court that his coplaintiff, C. D., cotrustee with said A. B., under the will of L. M., died on the day of

, 19, leaving said A. B. as sole surviving trustee and plaintiff herein.

[Or, that C. D., one of the three trustees under the will of L. M., deceased, and joined herein as such, as one of the abovenamed defendants, died on or about the day of 19 , and before this action was commenced; his name having been inserted in the summons and complaint in this action, by mistake, through the plaintiff's attorney not being aware of the death of said defendant.] 88 [Date.] [Signature, and address of],

Attorney for Plaintiff. [File with cierk of court, and serve copy with notice of filing89 as in Form No. 134, p. 278, inserting “suggestionand filed," instead of " orderand entered.”]

FORM No. 248. Suggestion on minutes in open court, or before referee, with order thereon.

The parties by their respective counsel being present, M. N., Esq., of counsel for the plaintiff, suggests to the court the death of the defendant A. B., and that the defendant C. D. is the sole heir-at-law and devisee of said deceased; and, on motion of the plaintiff's attorney, it is ordered by the court that this action proceed against said C. D. as sole defendant herein.90

[Under N. Y. Code Civ. Pro., § 757, move on affidavit, and draw up and enter a formal order; see Forms under Changing, Parties, vol. 2.

The mere filing of the suggestion of the death does not of itself effect a substitution, but simply serves as a warning to proceed no further in the cause without a substitution; an order of substitution should be entered. Phila. v. Jenkins, 162 Pa. St. 451, 29 Atl. Rep. 794.

See, as to the New York practice, the forms under Parties, vol. 2.

87 Enter formal order of substitution, unon notice, if new parties are to be joined as representing the interests of the deceased party.

88 See paragraph 2, supra.
89 Service of copy held unnecessary

in Bates v. Green, 19 Wend. (N. Y.)
630.

90 The attorney for a deceased party would have no presumed authority to consent to the joinder of the representatives.

ARTICLE XXV.

35

UNDERTAKINGS. 1. THE INSTRUMENT.

III. FILING AND SERVING. 1. The nature of the instrument. 2. Undertakings departing from the 36. Tardy filing. statute.

37. Relief from neglect to file. 3. Substantial compliance.

38. Service of copy with notice of 4. Undertakings void colore officii.

filing. 5. One instead of several.

39. Failure to serve; relief there6. Voluntary undertaking.

from. 7. Interchangeableness of terms. 8. Ancillary character of the obli

IV. JUSTIFICATION ON NOTICE. gation.

40. Justification, on notice. 9. Title. 10. Recitals.

41. Notice of exception. 11. Mistake in recital.

42. - effect. 12. Who may be sureties.

43. Notice of justification.

44. Exceptant's failure to appear. 13. Surety companies. 14. Number of sureties.

45. — course of the party giving the 15. Party.

undertaking. 16. Execution by party.

46. Failure of appearance by the 17. Qualifications of sureties.

party giving undertaking. 18. Words of representation.

47. Proceedings on the justification. 19. Obligee.

48. Effect of failure to justify on

notice. 20. The obligation. 21. Amount.

49. Remedy for fraudulent justifica22. Construction and effect.

tion. 23. Signature. 24. Rules common to undertakings

V. AMENDMENT AND SUBSTITUTION. and bonds.

50. Treatment of imperfect under25. Acknowledgment.

51. Amending defects. II. EX PARTE JUSTIFICATION. 52. Amending, etc., at instance of 26. Modes of justification.

party giving. 27. - combining sureties in lesser 53. Application for leave. sums.

54. Granting leave nunc pro tunc. 28. Surety's affidavit of sufficiency. 55. Amending at instance of sureties, 29. Necessity for approval.

56. — at instance of party secured. 30. — by clerk.

57. Amending action as to parties, 31. -- by court or judge, ex parte,

etc. 32. — not to be delegated.

58. New undertaking, after failure 33. Certificate of approval.

of justification. 34. Vacating the approval.

59. Compelling new undertaking.

60. Deposit in lieu. [For Forms, see p. 477 (below).]

I. THE INSTRUMENT. 1. Nature of the instrument.]- Formerly, when security was to be required in legal proceedings, it was customary to take a penal bond in double the sum. The technical form and incidents of bonds led the framers of the code procedure to substitute a simple written promise or engagement, to the same effect as the condition of a bond; and to this writing was given the name of “ undertaking.” 91 It results that, in the present state of the law, in some cases one form is required, and in some the other. The only substantial differences are that a bond is limited by a penal sum, and an undertaking may be unlimited,92 and that an undertaking is statute-barred in six years from breach,93 a bond in twenty.

Since the statute making a seal only presumptive evidence of a consideration, the bond is no more conclusive in this respect than an undertaking ;94 no consideration need be expressed.95

Which is to be given in any particular case depends on the statute or rule which sanctions it.96

What is known in admiralty practice as a stipulation is analogous to these undertakings, but is regarded as a contract with the court; while an undertaking, in ordinary cases at least, is to be regarded as a contract with the parties secured by it, not with the court,97 but is construed with due regard to the intent of the statute, or of the rule or order of court which required it to be given.

2. Undertakings departing from the statute.]— If in a case in which an undertaking can be exacted, an undertaking departing from the statute be given and accepted, not by an officer requiring it under color of office, nor in contravention of law, but by agreement of the parties, and the consideration or object for which

01 The undertaking is merely a simplified bond without a seal. People ex rel. v. Dando, 20 Abb. N. C. 245, 14 Daly, 66.

92 Goldsmith v. Gelliland, 23 Fed. Rep. 645.

93 Unless sealed. But a seal is not necessary. McLain v. Simington, 37 Ohio St. 484.

14 Thompson v. Blanchard, 3 N. Y. 335 (denying a motion to dismiss an appeal on the ground that no consideration was expressed in the undertaking. The statute itself is the consideration).

Approved in Doolittle v. Dininny, 31 N. Y. 350 (where in an action on an appeal undertaking the want of consideration was set up by way of defense).

S. P., Johnson v. Noonan, 16 Wis. 687.
95 Gein v. Little, 43 Misc. 421, 89 N. Y. Supp. 438.

96 A provision of law authorizing or requiring a bond to be given is, in New York, deemed to have been complied with by the execution of an undertaking to the same effect. N. Y. Stat. Constr. Law, $ 16. So as to a require. ment in an order. People v. Lowber, 7 Abb. Pr. 158.

97 This is the American doctrine. Delaney v. Miller, 78 Hun, 18, 28 N. Y, Supp. 1159. See also Smith v. Day, 31 Wkly. Rep. 187.

it is given be secured by giving it, it is valid,98 notwithstanding it may be more onerous than the statutory requirement.

If a clause that cannot be sustained as a voluntary contract, because in excess of the statute authority, does not make the undertaking void colore officii, it can be rejected as surplusage, and the rest may be sustained.99

And even a statutory prohibition against a bond being given without a prescribed clause for the benefit of the obligee, may be construed as meaning that the party tendering the security without such clause cannot insist on the benefit of the security, and as not preventing the obligee from waiving the omission, accepting the security as effective, and enforcing it upon breach of the condition."

3. Substantial compliance.]-A bond or undertaking required by statute, as a condition in legal proceedings, is sufficient if it conforms substantially to the form therefor prescribed by the statute (and, equally, one required by the court if it conforms substantially to that prescribed by the court), and does not vary therefrom to the prejudice of the rights of the party to whom or for whose benefit it is given.2

In considering whether a departure from the requirement is substantial, regard should be had not only to the question whether the amount and personal responsibility is sufficient, but also to whether the form and execution of the instrument impair that convenience and certainty of proof in case an action on it should be necessary, which a formal and regular instrument would afford.3

98 Goodwin r. Bunzl, 102 N. Y. 224 (undertaking on appeal, in form appro priate for money judgment instead of replevin).

Otherwise of an undertaking given to secure removal of a cause, which the court had no power to remove. Mittnacht v. Gschwend, 1 Rob. City Ct. 360.

Otherwise of an undertaking given upon an appeal from an order denying motion for new trial, and not from the judgment, since plaintiff's proceedings to enforce the judgment were not stayed. Carter v. Hodge, 150 N. Y. 532.

Where the undertaking given was ineffectual to legally secure the object sought, it cannot be enforced as a common-law obligation unless the obligea alleges and proves either that he agreed to, or that he did, on the faith thereof, suspend the enforcement of his remedy. Mossein t. Empire State Surety Co., 97 App. Div, 230, S9 N. Y. Supp. 843; Carter t. Hodge, 150 N. Y. 532.

99 Omaha Hotel Co. r. Kountze, 107 U. S. 378; abst. s. c., 28 Alb. L. J. 16.

1 Smith v. Meegan, 122 Mass. 6. (Sustaining recovery on bond to dissolve attachment, accepted without containing special clause precluding its aroidance by bankruptcy, required by Mass. St. of 1875, chap. 68, $ 2.) Denike r. Denike, 61 App. Div. 492, 70 N. Y. Supp. 629 (omission of undertaking to bind sureties jointly and severally).

2 N. Y. Code Civ. Pro., § 729.

4. Undertakings void colore officii.]— Under the previous New York statute,* making obligations void when taken by sheriffs or other officers (particularly by way of bail"), in any other case or inanner than such as are provided by law — an instrument less onerous than the statute requires, if accepted and affirmed by the party for whose benefit the officer takes it, was sustained and enforced;ø but an undertaking which was more onerous, though taken by the sheriff without intent to exceed the law, was void.?

Even under such a statute, however, the parties may agree upon a bond or undertaking more onerous in terms than is provided for by law; and if such an arrangement is substantially an agreement between the parties, it may be sustained, irrespective of the fact that the officer was an intermediary in effecting the arrangement.

5. One instead of several.]— It is not good practice to embody several undertakings in one instrument unless expressly authorized by statute.

But a single undertaking for several purposes is not invalid if accepted, and may be construed and enforced distributively; and hence for sufficient reasons of convenience is permissible.'

6. Voluntary undertaking.] – In a case where an undertaking could not be absolutely exacted, it may be given by consent

3 In Lyman v. Brucker, 26 Misc. 594, 56 N. Y. Supp. 767, the court refused to consider an objection by sureties that the bond was broader than the terms of the statute required.

42 N. Y. Rev. Stat. 286, § 59; repealed, L. 1892, chap. 686; Benedict v. Bray, 2 Cal. 251, 56 Am. Dec. 333.

5 Original of many American statutes. 23 Hen. VII., chap. 8. 6 Cook v. Freudenthal, 80 N. Y. 202, 207 (dictum).

7 Cook v. Freudenthal, 80 N. Y. 202 (undertaking on arrest); Lester v. Worden, 8 App. Div, 216, 40 N. Y. Supp. 436 (affiliation bond).

8 Toles v. Adee, 84 N. Y. 223.

9 This is the practice and in accordance with the result of the authorities. See Sharon r. Sharon (Cal.), 9 Pac. Rep. 187, qualifying People v. Center, 61 Cal. 191; Corcoran v. Desmond, (Cal. 1886), 11 Pac. Rep. 815.

In Eureka Steam Heating Co. v. Sloteman (Wis. 1886), 30 N. W. Rep. 241, 244, it was held that under a statute authorizing several orders to be appealed from by one appeal, with one undertaking, if the judge or court fixes the amount of the undertaking without qualification, he cannot afterwards strike out one of the orders from the appeal, on the ground that the amount was fixed, only with reference to the others. If misled he should modify or amend the order fixing the amount.

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