Van Slyke v. Schmeck

10 Paige Ch. 301 | New York Court of Chancery | 1843

The Chancellor.

If no other difficulty existed in this case than the technical defect in the condition of the bond, that could be remedied by allowing the appellant to amend, under the provisions of the revised statutes on that subject. (2 R. S. 556, § 34. Potter v. Baker, & Paige’s Rep. 290.) The formal defect in the petition of appeal is also one which this court would permit the appellant to amend, upon payment of costs, &c.

But the statute declares that the appeal shall not be effectual until a bond shall be filed with the surrogate, with two sufficient sureties, to be approved by him. (2 R. S. 610, § 108.) If the appeal bond, therefore, is not approved by the surrogate within the time allowed by law for appealing, the appeal is irregular and must be dismissed j as this court has no power to remedy such a defect. Here the bond was not approved by the surrogate 5 and he states in his affidavit that he did not consider the sureties responsible for the amount required. Their affidavit of justification was not equivalent to an approval of the sureties by the surrogate. For if he. doübted their responsibility, it was his duty to examine them on oath as to the particulars of their property, where it was situated, &c. and as to the nature and amount of their debts and responsibilities, before he approved the appeal bond. A bond properly approved not having been filed with the surrogate within the thirty days allowed by law for appealing, the appeal filed with him was irregular and must be dismissed, with costs.