7 N.Y.S. 219 | N.Y. Sup. Ct. | 1889
One of the original defendants to this action, Amariah Bradner, was indicted at the oyer and terminer held in Livingston county in the month of May, 1886, for the crime of larceny in the second degree. Upon the presentment of the indictment, thfe same was sent to the court of sessions of that county for trial. Subsequently the accused as principal, and this appellant, Amariah Hammond, and another, as sureties, executed an undertaking in the sum of $500 for the appearance of the accused. This undertaking was properly acknowledged by the sureties, who duly justified as such, but the same was not acknowledged by the principal. The learned judge before whom this action was tried has dismissed the complaint upon the ground that the failure of the principal to acknowledge the undertaking was fatal to any claim of liability against the sureties thereto. To this proposition we cannot assent. The statute permits the defendant, whether in a civil action or in an indictment, to execute an undertaking with or without sureties. Code Grim. Proc. § 581; Code Civil Proc. §§ 810, 811. Had Bradner not been a party to this paper in name, no question could have been raised in regard to the liability of the sureties thereto under these provisions of the several Codes. If there be a fallacy in the reasoning of the learned judge, it consists in the proposition that, inasmuch as the recognizance is required to be a record, that it therefore must be acknowledged by all of the parties thereto whose names appear thereon. The surety, having undertaken, in the form stated, for the faithful appearance of the accused for trial, is not in a position to avail himself of any mere formal defect in the instrument which applies to another party thereto, and not to himself.
But there are other grounds upon which this judgment may be maintained. It is found as a fact by the trial court, which finding is abundantly sustained