Connor v. Allison, 129 Misc. 226

Connor v. Allison

129 Misc. 226 | N.Y. Sup. Ct. | 1926

Taylor, J.

The defendant John Allison’s objections — (a) that complaint and affidavit of justification of sureties are verified before, and that the acknowledgment of the sureties is taken by, the plaintiff’s attorney as a notary public; and (b) that the bail required of each defendant is excessive are, and each of said objections is, overruled. The objection that the undertaking to obtain the order of arrest, purporting to be given in pursuance of Civil Practice Act (§ 835) is insufficient, is sustained, both as to the form of the undertaking, which runs to the defendants jointly, and as to the amount thereof, which is not at least one-tenth of the amount of the bail required. (Civ. Prac. Act, § 835.) The question is whether the omission to give a proper undertaking to each defendant, as, in effect', required by the said section of the Civil Practice Act, is an omission which may be supplied.

Under the broad terms of section 105 of the act, I hold that, in *227the discretion of the court, such omission may be supplied, even to the extent of giving new and proper separate undertakings in place of the one already filed. I think that the act is broader in its terms than the corresponding provision of the former Code of Civil Procedure. Therefore, the motion to vacate the order of arrest is denied, but upon the plaintiff filing within ten days, two separate undertakings, one running to the defendant Allison and the other to the defendant Ziegler, and each complying with section 835 of the Civil Practice Act, and further upon the plaintiff paying, within the time so limited, the sum of ten dollars motion costs to the attorney for the defendant Allison.

Ordered accordingly. Settle order before me at Mt. Vernon on two days’ notice.