Page images

A surety company justifies under special statutory provisions, though the method is not exclusive. 49

48. Effect of failure to justify on notice.]— If before an undertaking has begun to serve its purpose, the sureties fail to justify when duly required, the adverse party may act as though no undertaking had been given, or have the proceeding taken on the faith of it set aside or dismissed, and if he does so he cannot afterward enforce the undertaking against them.50

And if one of several necessary sureties, jointly bound, refuses to justify, the other should be deemed discharged. 51

After a refusal to justify which is such as to operate to discharge the sureties, the exceptant cannot, by withdrawing his exception, reinstate the obligation.52

49. Remedy for fraudulent justification.]— If a party or his agent54 knowingly puts in an undertaking with a false justification, the court has inherent power to set aside the proceedings, or to require a new surety or undertaking as a condition of being allowed to proceed, 56 or to punish for contempt.57 The court is r.ot bound to allow a fraudulent justification to be replaced by fresh security. 58


V. AMENDMENT AND SUBSTITUTION. 50. Treatment of imperfect undertaking.]—An undertaking, the giving of which is relied on ipso facto, and without judicial approval, as securing its object, may be disregarded by the adverse party, if it be less beneficial than the statute requires, or if it fails to identify the proceeding or in any other substantial respect leaves its validity dependent on extrinsic oral evidence.


48 L. 1893, chap. 720, $ 4, as amended by L. 1895, chap. 178. 49 Haines 2. Hein, 67 App. Div. 389, 73 N. Y. Supp. 293. 50 Manning 1. Gould, 90 N. Y. 470, 480; Collins v. Ball, 31 Hun, 187, 191.

But if the undertaking has served its purpose, he may hold them, notwithstanding failure to justify. Decker v. Anderson, 39 Barb. 346.

51 Grow 1. Garlock, 29 Hun, 598.
52 Hoffman 1. Smith, 34 Hun, 485.
53 Elson 1. Murray, 27 Hun, 536.
54 Railroad Co. 1. Schutte, 100 U. S. 644.
65 Railroad (. . Schutte, 100 ('. S. 644.
56 Elson r. Murray, 27 Hun. 536.

57 Egan v. Lynch, 49 N. Y. Super. Ct. 454. Compare Nathans r. Hope. 100 N. Y. 615; s. c., more fuly, 1 Cent. Rep. 279. See Vol. 2, title CONTEMPT.

58 Railroad Co. v. Schutte (above), and dictum in Elson v. Murray (aborul.

If an undertaking, imperfect in these respects, has been approved by the court or judge pursuant to law, it should not be dis- • regarded, but a motion to set aside it or the proceedings thereon, should be made. 59

51. Amending defects.]— The general power of amendment conferred upon the court applies to undertakings,o and the affidavits and approval, save, however, that the instrument of undertaking cannot itself be amended by substantial alteration on its face without the consent of the signers, 61 because it is a contract - except by an action to reform it.

52. Amending, etc., at instance of party giving.]— The court may allow a party who has given a bond or undertaking, whether under a requirement of the court,62 or under requirement of a stat

59 This should be the proper practice. See Dinkel v. Wehle, 13 Abb. N. C. 478, for conflicting authorities.

60 Thus, to meet a motion founded on imperfect recitals, the court may allow an amendment of the undertaking. Schermerhorn v. Anderson, 1 N. Y. 430 (reference to one of two appeals struck out so as to leave the undertaking applicable to the other).

So, defects in signature may be allowed to be cured by amendment, to defeat a motion to set aside proceedings founded on the undertaking. Lamkin v. Douglass, 27 Hun, 517, rev’g 63 How. Pr. 47 (attachment).

So also, an insufficiency in amount may be allowed to be amended by filing a new undertaking to defeat a motion to vacate the proceeding founded on the undertaking. Kissam v. Marshall, 10 Abb. Pr. 424 ( undertaking to obtain attachment); Robeson v. Lewis, 64 N. C. 734 (undertaking on appeal).

So too, an undertaking, defective in not being joint and several, is amendable to defeat a motion to vacate the arrest granted on it. Irwin v. Judd, 20 Hun, 562 (on the ground of the general power of amendment under the statute of amendments).

In Boden 1. Dill, 58 Ind. 273, an undertaking made pavable to only one of several defendants enjoined, was held good, as having been made for the benefit of all parties enjoined, and under the Revised Code of Indiana (790) no undertaking could be held void for want of form.

61 Biggert v. Nichols, 18 Misc. 596, 42 N. Y. Supp. 472; Ramsey v. Childs, 34 Hun, 329; Matter of King's Will, 2 Edm. Sel. Cas. 428; Potter v. Baker, 4 Paige, 290.

Without such consent, the amendment must be by filing a new under. taking. Cobb v. Lackey, 6 Duer, 649 (where, in an action for chattels, it was held that other bail cannot be substituted by inserting the name of the new surety and the latter signing it without consent, but there must be a new undertaking. Motion granted to set aside the certificate of justification obtained by plaintiff on an ex parte application, but with leave to file anew on terms).

In Shaw v. Lawrence, 14 How. Pr. 94, the court required a petition from all the former sureties. A written consent by all, signed, acknowledged, and filed, is, however, enough.

62 Potter v. Baker, 4 Paige, 290 (inserting other sureties allowed).

ute, 63 to amend any defect in it,64 on the application or consent of the persons who executed it; but not without such consent,65 or may give him further time to file a new undertaking, by virtue of the statute of

53. Application for leave.] — The practice is to apply, not for an order that amendment be allowed on condition that assent of the sureties be obtained, but upon consent of the sureties in writing, and acknowledged,67 or if the application is on their behalf, or for their protection, to apply by petition, signed and verified by them,68 for an order directing the clerk to make the proper amendment in the undertaking on file.

Such relief may be granted, or opportunity to apply for it given, when asked in opposition to a motion founded on the defect it is asked to supply,69 and if the undertaking was incident to an appeal, the appellate court may grant the like relief without putting the appellant to a motion in the court below.70

54. Granting leave nunc pro tunc.]— If the time has lapsed, the court may, on cause shown, grant leave to procure justificaLion, or give a new undertaking nunc pro tunc.73

63 N. Y. Code Civ. Pro., § 730.

64 Johnson r. Johnson, 31 Ohio St. 131 (omission of statutory condition supplied).

Irwin x. Judd, 20 Hun, 562 (insertion of words of joint and several obliga. tion, and enlarging amount to be paid, allowed).

Langley r. Warner, 1 N. Y. 606, 3 How. Pr. 363, 1 Code Rep. 111 (increas. ing amount, allowed).

Potter 1. Baker, 4 Paige, 290; State 1. Russell, 17 Nebr. 201, 22 N. W. Rep. 455 (adding a surety, allowed). See also note 60, p. 473 (above).

65 Wilson v. Allen, 3 How. Pr. 369. See also note 61 (above)." 66 Sternhaus v. Schmidt, 5 Abb. Pr. 66.

For instances of amending by filing new undertaking, see Whaling t. Shales, 20 Wend. 673; Cutler v. Rathbone, 1 Hill, 204; Newland v. Willetts, 1 Barb. 20.

In Lovitt 1. Wellington, etc., R. R. Co., 26 Kang. 297, it was held that where an undertaking given on appeal is void by being made payable to an entire stranger to the proceeding, a new one cannot be filed.

67 Ramsey 6. Childs, 34 Hun, 329.

68 The case of Shaw v. Lawrence, 14 How. Pr. 94, so far as it intimates that amendment cannot be made without formal petition, is unsound. See note 61, p. 473.

69 Cunningham v. Hopkins, 8 Cal. 33. 70 Arnoux v. Homans, 32 How. Pr. 382.

71 Pencinse v. Burton, 9 Oreg. 178 (holding that it must be shown that such omission is the result of unavoidable accident or excusable mistake).

72 Helden v. Helden, 9 Wis. 557.

73 Hardt v. Schulting, 59 How. Pr. 353; 8. P., Katz v. Kuhn, 9 Daly, 172; Coulter v. Stark, 7 Cal. 244,

Leave to file a new undertaking may be granted to defeat a motion founded on the failure to justify.74 But where it was asked after submission of the motion, held that it was too late.75

Such an application is discretionary.70

55. Amending at instance of sureties.]—At any time before the undertaking has operated so as to affect any right of the party in whose favor or for whose protection it is given, the court may, on application of the persons who executed it, allow an amendment." If the undertaking has been filed or delivered, the application must be on notice to the party in whose favor or for whose protection it was given.

56. — at instance of party secured.]— So merely formal a mistake as undertaking that the “ plaintiff" will pay instead of the “ defendant,” may be corrected by the court on motion, or reformed in equity, or both.78

57. Effect of amending action as to parties, etc.] — An amendment as to parties in the action, which does not make any change in the nature of the claim which is the subject of the suit, and does not cast any greater or different liability upon the sureties, nor involve a new party not mentioned or contemplated in the bond, does not impair the liability of the surety. T9

58. New undertaking after failure of justification.]—After the undertaking has fallen by a failure to justify, the party may, if his time to give an undertaking has not lapsed, give a new undertaking :80 and if the adverse party desires justification on notice, he

74 Reese v. Boese, 92 N. Y. 632 (motion to dismiss appeal).

Arch. Iron Works v. City of Brooklyn, 85 id. 652 (motion to strike from calendar).

75 Tevis v. O'Connell, 21 Cal. 512.
76 Mills v. Thursby, 11 How, Pr. 129.

77 So held of an undertaking on appeal, where the provision making the sureties liable for the amount of the recovery, was inserted by mistake, and it was intended that they should be liable only for the costs of appeal, no stay of proceedings being desired. O'Sullivan v. Connors, 22 Hun, 137.

As to canceling and the right to notice, see Lawrence v. Foxwell, 49 N. Y. Super. Ct. 506; Dry Dock, etc., R. R. Co. v. Cunningham, 45 How. Pr. 458.

78 (lute v. Knies, 102 N. Y. 377.

79 Poole v. Dyer, 123 Mass. 363; Christal r. Kelly, 88 N. Y. 285; N. Y. Code Civ. Pro., & 815.

80 The respondent is not entitled to have the appeal dismissed providing the appellant, before the hearing of the motion to dismiss, files a new undertaking, duly approved. Schacht v. Odell, 52 Cal. 447.

must except afresh, otherwise the new undertaking stands on its ex parte justification or affidavit of sufficiency. 81

59. Compelling new undertaking. ] - If the requirement of se curity originated with the court, and not in the statute, or if the amount is purely discretionary, or the continuance of a favor depends upon it, the court have inherent power to require new security, or additional sureties to be furnished when those already given become or are found to be irresponsible. 82

In case of an original defect in security, the application should be made only to the court or to the judge originally approving the security (except where fraud is shown), for the application is in effect to reconsider his decision.83

For insolvency, etc., intervening after a good security has once been given, application may be made as res nova; and if the security was incident to removal of the cause to an appellate court, the application is within its jurisdiction.84

The New York statute85 expressly gives this power to the appellate court, in case of insolvency, etc., intervening after undertaking given.

But even under such a statute, an application for further security is addressed to the discretion of the court; and if the security appears adequate, it may be refused. 88

60. Deposit in lieu. ]— IVhere a bond or undertaking is required by statute, a deposit of money in lieu thereof cannot be accepted by the judge or court without consent, and if so accepted, it is ineffectual.87 The reason is that money lodged with the clerk under a voluntary arrangement is not subject to the same control as moneys paid into court under authority of law.

81 Blake r. Lyon, etc., Mfg. Co., 75 N. Y. 611.

82 For instances of the assertion of this power in admiralty, see Jones' Fed. Rule No. VI, and cases cited.

83 Jerome v. McCarter, 21 Wall. 17, 31; reiterated in The “Atlas," 93 U. S. 302.

84 Rubber Co. r. Goodyear, 6 Wall. 153.

85 N. Y. Code Civ. Pro., $ 1308. The appellate court alone has jurisdiction to entertain the application. Parks 1. Murray, 109 N. Y. 646.

86 Dering r. Vetcalf, 72 N. Y. 613 (holding that though two sureties were originally essential, insolvency of one was not ground for requiring another, if the remaining surety was amply responsible).

87 Bate 1. McDowell, 48 N. Y. Super. Ct. 219 (affirming an order setting aside an attachment because a deposit of money was made instead of giving an undertaking).

« PreviousContinue »