27 N.Y.S. 525 | N.Y. Sup. Ct. | 1894
This is an action against the sureties on an undertaking given by the defendants for the return of a horse which had been replevied by the plaintiff in an action in a Justice’s Court in Niagara county, before Edwabd G. Pabkeb, Justice, wherein Esther C. Townsliend was plaintiff and John Duffy defendant. The defendants herein demur to the complaint and allege as grounds of demurrer that the complaint does not state facts sufficient to constitute a cause of action.
The complaint then alleges the judgment of reversal and of the filing of the judgment roll and the docketing of the judgment in ¡Niagara county clerk’s office on the 20th of ¡November, 1889, the issuing of an execution thereon to the sheriff of the said county, its return unsatisfied and the assignment thereof before the commencement of this action to the plaintiff herein, and demanded judgment for the amount of such County Court judgment. The copy undertaking (“ A ”) was. entitled in the Justice’s Court action and recited that the defendant required the return of the chattel (the horse). “ replevied by the plaintiff in the above-entitled action,” and stated its value to be $150, and provided that the sureties (the. defendants herein) “ are pursuant to the statute jointly and severally held and firmly bound in the sum of three hundred dollars for the delivery of said chattel so required to the said
The defendants are sureties on this undertaking, the condition of which is the measure of their liability. The purpose of giving this instrument is to indemnify the plaintiff in case the defendant takes the chattel pending the litigation and fails, to have it forthcoming when required to satisfy the judgment, and for the payment to the plaintiff of any sum which the judgment awards against the defendant. The Code of Civil Procedure, section 2925, provides that the defendant may, at. any time before the return day of the summons' if he does not except to the plaintiff’s sureties, serve upon the justice a notice that he requires a return of the chattel replevied. With the notice he must deliver to the justice an affidavit requiring a return of the chattel, as provided by sections 1704 and 1712 of the Code: “ * * * the sureties in the undertaking must justify before the justice upon the return of the summons.” The affidavit, by section 1704, must allege the •ownership of the chattel in the defendant, or that he is lawfully entitled to the possession thereof by virtue of a special property therein, the facts with respect to which must be set. forth. The undertaking therein provided shall be in form the same as the one before us.
Section 2926 provides for the justification of the sureties of the defendant and the allowance of the same. The scheme of the statute is that the defendant shall procure such allowance by the justice on the return of the summons. By section 2927, the defendant must require a return of -the chattel and
And we assume that there will be included in this judgment the costs of the action.
This is the judgment to which the undertaking refers. The judgment for the recovery of the chattel itself, or, in the event of its nonproduction, its value.
The defendant is not entitled to the return of this property unless he takes the proper statutory steps pending the litigation, none of which is alleged in the complaint except the giving of this defective undertaking and its filing with the justice.
In order to make these sureties liable upon their undertaking the chattel must be delivered to the defendant. The complaint should have alleged that, upon taking the proper statutory proceedings in the justice’s action, the chattel was delivered to the defendant. This is not alleged except in the recital contained in the undertaking. Possibly this may bind the defendants, as the complaint makes the undertaking a part thereof. The complaint should have further alleged the taking of the necessary statutory steps by the defendant in the justice’s action to procure a return of the property and the delivery of the chattel in pursuance thereof, or at least that the delivery of the chattel was procured by means of the undertaking. As has been seen, there is an entire failure in this respect. The mere failure to justify the undertaking by the sureties, however, if all other proceedings were regular,
The bare statement of the justice on the back of the undertaking that he received the affidavit and notice with the undertaking is not an allegation that a sufficient notice or affidavit was received in connection with the undertaking, and does not aid the plaintiff, nor does it amount to an allowance by the justice of the undertaking. The complaint has other defects; it does not set forth the proceedings to procure the judgment of reversal in the County Court, further than the bare allegation that an appeal was taken and a judgment rendered, nor does it state in any manner that the County Court had jurisdiction to render the judgment or that the judgment was “ duly given or made.” It does state that on the 18th of June, 1889, the judgment was rendered in the Justice’s Court, and that the appeal was taken therefrom on the 6th day of June, 1889, twelve days earlier. But, passing over these defects, it is entirely apparent that the complaint is fatally defective in the respects otherwise indicated. It is, therefore, unnecessary to consider the question, to some extent argued by counsel, whether, if the complaint were not subject to the objections above stated, the plaintiff could, in any event, recover in this action.
These conclusions lead to the sustaining of this demurrer, which is ordered, with costs, but the plaintiff may have leave to serve an amended complaint in this action within twenty days after the service of the proper order upon him and the. payment of such costs.
Ordered accordingly.