Dougan v. Cohen.

but a mere irregularity, and in this respect the case differs from Riggs v. Waydell (78 N. Y. 586), where the offer itself, subscribed by the attorney, was regarded as a nullity because not accompanied by an affidavit of authority. The affidavit of the attorney is by section 740 made an essential part of the offer, and its omission left the offer without statutory support. Not so here-for the defect, if it be one, consisted in serving the copy instead of the original; and while strongly impressed with the belief that the service of the copy bearing the indorsement of the attorney is sufficient, I prefer to place my decision upon the further ground that if insufficient the defect is purely technical, not substantial, and that the plaintiff was bound to return the copy served, with the defect pointed out, that it might be remedied. Good practice requires this in the interest of substantial justice.

As the offer made was, for the reasons stated, effective, and the recovery had less favorable to the plaintiff than the offer, the clerk did right in taxing the bill of costs presented by the defendant, and the taxation must be affirmed.

DOUGAN AND ANOTHER, APPELLANTS, v. COHEN,, RESPONDENT.

CITY COURT OF NEW YORK, SPECIAL TERM, NOVEMBER, 1887; AND GENERAL TERM, DECEMBER, 1887.

§§ 149, 150, 152, 573 et seq.

Arrest Who admitted to liberties-New undertaking.

A defendant arrested in an action brought to recover chattels wrong. fully concealed and disposed of may be admitted to the liberties of the jail upon the ordinary limit bond.

Dougan v. Cohen.

Under section 152 of the Code of Civil Procedure, if a sheriff who has taken a bond for the limits, discovers that the surety therein is insufficient, he may commit the prisoner who executed it to close confinement in the jail until another bond with good and sufficient sureties is offered, and the prisoner may give a new bond in lieu of the one on which the sureties failed to justify. The amendment of section 150 of the Code of Civil Procedure, in 1886,-making sections 573 et seq. of the Code, relating to the justification of bail, applicable to cases in which a prisoner has given bail for the limits,-does not affect this right.

(Decided at special term, November 29, 1887, and at general term, December 27, 1887.)

Exceptions at special term to undertaking given by the defendant, to secure his release within the limits, and motion that the sheriff be required to accept such undertaking provided the sureties therein duly justify.

The defendant was arrested in this action, which was for the recovery of chattels, upon the ground that he had concealed or disposed of the same with the intent that they could not be found, pursuant to section 549, subdivision 2, of the Code of Civil Procedure, and was held to bail in the sum of $1,200. Upon his arrest, he executed, on October 17, 1887, an undertaking for the 'imits. The plaintiffs excepted to the sufficiency of the sureties thereon. They failed to justify, and, on November 4, 1887, the sheriff re-arrested the defendant, who, thereafter, gave a second undertaking for the limits, which contained the same sureties who were on the former undertaking. The plaintiffs excepted both to the form and to the sufficiency of this last undertaking, and notice of justification was thereafter served for November 17, 1887. Thereafter, this application came up in due course, for hearing at chambers.

George W. Van Slyck, for plaintiff and exceptions.

Herman Joseph, for defendant, opposed.

Dougan v. Cohen.

NEHRBAS, J.-The defendant, who was arrested in this action, which was brought to recover chattels wrongfully concealed or disposed of, may, under sections 149 ånd 150 of the Code, be admitted to the liberties of the jail upon the ordinary limit bond (Levy v. Kaim, 55 How. Pr. 136). Section 150, since amended, provides that "the provisions regulating the justification of bail, contained in art. 3, title 1, chap. 7. (§ 573 et seq.) govern, except as otherwise expressly prescribed in this article with respect to .. the substitution of new sureties, or a new undertaking." But section 152 does expressly provide otherwise, to wit: if the sheriff, who has taken such a bond, discovers that a surety therein is insufficient, he may commit the prisoner who executed it to close confinement in the jail, until another bond, with good and sufficient sureties, is offered. Under this section, I think the prisoner may give a new bond in lieu of the one on which the sureties failed to justify. The sheriff is, therefore, directed to accept such new bond, provided the sureties justify on December 1, at 10 A. M.

The plaintiff subsequently duly appealed from the order entered on this decision.

George W. Van Slyck, for plaintiff-appellant.

The defendant was not entitled, after the failure of the sureties on his first undertaking for the limits to justify, to give a new or second undertaking for the limits..

Prior to the amendment of section 150 of the Code, the defendant, in an action to recover chattels, wrongfully concealed and disposed of by the defendant, could only obtain his release from actual custody, under an order of arrest, by giving an undertaking under subdivision 2, section 575 of the Code, to pay any judgment that might be recovered against the defendant. The undertaking under section 575 discharged the defendant from arrest. The undertaking under section 149 of the Code extends the liberties of the jail to defendants in custody

Dougan v. Cohen.

under orders of arrest as well as under final process. Levy v. Kaim, 55 How. Pr. 136. The defendant in the case at bar gave the undertaking for the limits of the jail, and was not discharged from arrest thereby. .

If the defendant had given bail for his discharge in this action instead of an undertaking for the limits, then, by the express provisions of the Code, the sheriff by reason of the failure of the sureties to justify, could not discharge himself from liability by the giving and justification of new bail, as this is an action to recover a chattel. See section 587 of the Code. . . Section 150 of the Code of Civil Procedure describes the contents of the undertaking to be executed by the prisoner for the limits, and then, by an amendment passed in 1886 (chap. 648)— it provides that:

"The provisions regulating the justification of bail, contained in art. III. title I. chapter 7 of this act (§§ 573 et seq) govern, except as otherwise expressly provided in this article with respect to the notice of justification of the sureties; the officers before whom they must justify; the substitution of new sureties on a new undertaking; the examination and qualifications of the new sureties and the allowance of the undertaking." Code, § 587, provides, "If after the defendant is arrested he escapes or is rescued, or the bail, if any, given by him do not justify when they are not accepted the sheriff is liable as bail. But the sheriff may, except in all action to recover a chattel, discharge himself from liabil ity by the giving and justification of bail as follows," etc. Mr. Justice NEHRBAS recognized the force of these provisions, but held that, under section 152 of the Code, the sheriff can take a new undertaking.

(a) This provision, it will at once be seen, is for the benefit of the plaintiff, "the party at those instance the the prisoner is in custody," so that the section does not affect the rights or the liabilities of the sheriff."

Dougan v. Cohen.

(b) The party must make an application to court for an order to commit the prisoner.

This proceeding can only be taken after it has been established that the sureties are insufficient. The proceedings upon the part of the plaintiff for the commitment of the prisoner can only be made after the justification of the sureties. In the case at bar, there was no justification whatever.

Herman Joseph, for defendant, respondent.

Section 587 has reference only to release to the sheriff. and not the parties to the action.

That section is intended to relieve the sheriff and not to add any liability to him not already incurred.

Under appeilant's theory, this section, instead of tending to relieve the sheriff, should be construed into affixing on him a liability not incurred under sections 149 and 150.

Section 587 contains an exception made in respect to actions to recover a chattel that clearly applies only to bail gived under subdivision 2 of section 575.

In such a case, i. e., bail under subdivision 2 of section 575,-the bail cannot be exonerated by the surrender of the defendant to the sheriff, because, after giving the undertaking required by such action, the sureties cannot be discharged except upon the delivery or payment provided for in the undertaking they gave, and the sheriff's power and authority under the order authorizing the arrests ends on the discharge of the defendant upon the receipt and acceptance by him of such an undertaking. It is, therefore, obvious that the sheriff could not discharge himself from bail in such an action where the sureties could not. "He, so far as the plaintiffs are affected, stands in the place of the sureties, and has become liable to the same extent to the plaintiff as they would have been if they had been accepted by him." McKenzie v. Smith, 48 N. Y. 143.