1 Daly 296 | New York Court of Common Pleas | 1863
By the Court.
This judgment was undoubt- - edly irregular. The condition of the bond upon which the action was brought was that the defendantLyons would well and faithfully execute the office of constable, and the mode of proceeding in an action upon bonds of this nature is regulated in part by the 147th section of the act to reduce several laws relating to the City of New York into one act (Rev. Laws of 1813, p. 396), and in part by Art. 2, Tit. VI., Chap. VI., Part III. of the Revised Statutes pointing out the mode of proceeding in action upon bonds for the performance of covenants, It is not, in the sense of the fifth section of the article referred to in the
The 141th section of the Act of 1813 declares that where a recovery is had against a constable by a party aggrieved through the officer’s default or misconduct, that such party may obtain an^rder in this Court that the bond be put in suit, and if judgment is recovered, the act directs that this Court shall, upon motion, direct so much money to he levied upon the judgment as shall be sufficient to pay the party the debt or damages, so recovered, with costs, to be paid to the party aggrieved. If there has been an appearance in the cause, this motion must be made upon notlce_ to the opposite party, (King v. Stafford, 5 How., 30;) and since the Code, sec. 246, the Court, instead of directing an assessment, as was formerly tire practice, or a reference, may hear the proof of the recovery of the judgment against the officer, and if satisfied of the fact, make the order provided for in the act referred to. Instead of doing this, the plaintiff’ upon its being adjudged that the answer was frivolous, took a general judgment for the sum mentioned in his complaint. This was erroneous. He should have entered up judgment for the penalty of the bond, and then moved the Court for the order provided for by the Act of 1813,
But although the mode in which the judgment was entered was irregular, the defendants waived the irregularity by appealing from the judgment to the General Term ; and judgment having been given ágainst them on the appeal, they could not afterwards move" to have the judgment set aside for irregr.
The defendants in the present case knew of the irregularity, as they appealed from the judgment, and if they wished to avail themselves of it they should have moved to set the judgment aside, instead of taking an appeal from the order direeling the entry of the judgment, and from the judgment. The error in the mode of entering up tin? .judgment..could not be reviewed upon appeal. (Whitehead v. Allen, 28 Barb., 661; King v. Stafford, 5 How., 30.)
The other Judges concurred.