Hohenstein v. Westminster Candle Co. — 31 A.D. 11

Majority

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Hugo Hohenstein, Appellant, v. Westminster Candle Company, Respondent.

Headnote

Undertaking in replevin —new sureties cannot be required by the court.

The Supreme Court has no authority, where a surety upon a hond' given by the plaintiff in an action to replevin certain chattels has become insolvent, to require the plaintiff to give a new undertaking.

Appeal by the plaintiff, Hugo Hohenstein, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 16th day of April, 1898, requiring him to substitute a new surety and to file a new undertaking in an action of replevin.

Felix Jellenili, for the appellant.

Otto II. Wejmg, for the respondent.

The plaintiff replevined certain chattels and for that purpose executed and delivered the undertaking, with two sureties, required by section 1699 of tile Code of Civil Procedure. Thereafter one of the sureties became insolvent, and the defendant, on that ground, applied for and obtained the order appealed from, which requires the plaintiff to give a new undertaking.

We think the order must be reversed. There is no provision in the Code of Civil Procedure which entitles a defendant to an under

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taking in an action of replevin other than that specified in the section above referred to. The plaintiff to obtain possession stated in an affidavit then made by him the actual value of the chattels claimed (§ 1695), and gave the undertaking required (§ 1699). If the defendant was not satisfied with the sureties named in the undertaking it could then have excepted to them (§ 1703), or it could have itself retained possession by giving the undertaking required by section 1704. Not having, however, seen fit to exercise either of these options, it became the duty of the sheriff to deliver the chattels to the plaintiff (§ 1706), and he, having performed that duty, the power of the court to regulate and control the possession of the chattels, pending the final determination of the action, was exhausted. The statute confers no .authority upon the court to thereafter interfere with their possession or control, and no authority exists independent of it. In Manley v. Patterson ( 3 Code Rep. 89 ) where a similar provision of the Code was under consideration, Edmonds, J., observed that after the property had been delivered to the plaintiff he could “ discover no power in the court to order it redelivered to the defendant, except on final judgment; nor any mode in which an order for its redelivery prior to judgment can be enforced, so that it would seem that when the property has been delivered to the plaintiff, even when his sureties are utterly worthless, the statute has provided no remedy except the sheriff’s responsibility for the plaintiff’s omission to justify his sureties.” Substantially the same view was taken with regard to another branch of the statute in United States Land Co. v. Bussey ( 53 Hun, 516 ) in which Mr. Justice Babbett said, “the exercise of such a power would practically destroy the entire system so elaborately constructed by the Code, and would substitute discretion and equity for the strict legal rights contemplated by the scheme.”

It follows that the order must be reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs.

Babbett, Rumsey and O’Brien, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.