Eiseman v. Swan — 11 Abb. Pr. 112

Majority

p. 112

EISEMAN a. SWAN.

New York Superior Court;

Special Term, September, 1860.

Headnote

Undertaking.—Insolvency of Surety.

The court will not require a party who has given security with two sureties, as the condition of a favor shown by the court, to renew the security merely because one surety has become insolvent.

Motion to compel defendant to add another surety to his bond, given on opening an inquest

Where an inquest which has been taken against a defendant has been set aside by the court, and the defendant allowed to try the cause on giving a bond with two sufficient sureties, conditioned to pay any judgment that may be recovered in the action, and such bond is given with two sureties who justify, the defendant will not be required to file another bond with one good surety, merely because one of the

p. 113

sureties in the bond actually given has become insolvent. ( 15 How. Pr., 130 ; 4 Abbotts’ Pr., 460.)

In this case there has been a trial since the inquest was opened. The plaintiff recovered, and the court at general term has granted a new trial. The moving affidavits do not intimate that one of the sureties is not now abundantly sufficient, and the opposing affidavits represent him as abundantly good, and the defendant to be personally able to pay any judgment that may be recovered.

The motion to compel the defendant to give a new bond with one good surety is, therefore, denied.