Majority
p. 77Phillippo Montegriffo v. Felice Musti, Vincenzo Squarza, and Salvatore Caro.
Headnote
An undertaking given pursuant to section 309 of the Code of Procedure, in an action of claim and delivery of personal property, conditioned for a return of the property, if a return should be adjudged, and for the payment of such sum as should, for an;- cause, be recovered against the plaintiff in the action, is substantially one for the payment of money.And an action against the sureties in such undertaking, is an action arising on contract within section 129 of the Code, and a summons for a money demand, in such an action, is proper.
Appeal by the defendant from an order made at Special Term denying a motion made by the defendant Caro to dismiss the complaint on the ground that it did not comply with the summons.
The notice inserted in the summons states that the plaintiff1, on a failure to answer, on the part of the defendants, will take judgment for a specific sum. The complaint served set forth a cause of action against the defendants upon a bond or undertaking, made by the defendant Caro, as surety for another defendant, in an action to recover possession of certain personal property.
It was claimed by the appellant that the summons should have been within the second subdivision of section 129 of the Cede of Procedure to authorize the complaint served.
Henry H. Morange, for appellants.
A. C. Fransioli, for respondent.
By the Court.
The defendant Caro undertook and became bound to the plaintiff for the return of the property claimed and taken by Felice Musti, if a return .thereof should be adjudged, and for the payment of any such sum as should, for any cause, be recovered against Musti in the action commenced by him, and in which the undertaking of Caro
p. 78
was given. The obligation assumed, by Caro was twofold, namely—to return the property taken by his principal, Musti, and to pay any amount that might, for any cause, be recovered against him, which covered the costs allowed by the statute, if Musti failed in the action, and the value of the property, if he failed to return it after judgment. The undertaking is substantially one for the payment of money. The statute provides for the liquidation of the damages for the omission or neglect to return the property by requiring the jury to assess the value of the property, and thus the pecuniary obligation of the surety is determined in that respect, and the costs and allowanee also allowed by statute determine the whole extent of the surety’s liability. What is the plaintiff to recover, if the property he not returned ? He recovers its value. Has that been ascertained % It has, and is not open to question. It is a thing determined. . The principal has, then, neglected to return the property—the sureties have neglected' to return the property, and the plaintiff seeks to recover its value. There can be no doubt of his right to this remedy. . The Oourt has adjudged that the defendant Musti return the prop-o',,-y taken by him, or pay two hundred dollars, wMch was its - - re ; and having neglected to return it, the plaintiff has rewed that amount, and the costs in the action. This the v 'les undertook, in express language, to pay, and the plain- ". -is stated all the facts necessary to establish his right to \-o ■ mount claimed. Whether the defendants, the sureties, . uM have a right to return the property in diminution of the iv • n :, d1 aimed by the plaintiff, it is not necessary to decide = - • • - al; but it is very clear that the undertaking of the , ,.n, was one for the payment of money on. the .v. . ..of h..- ...i.mipal, Musti, to return the property which he :V/ >; an action, in the language of section 129 <;• ,le Ov dc, u contract, and for the recovery of money only. 2io Cfh-;r - A. ;; demanded.
The order ax ■ »■,•.. should be'affirmed, with ten dollars costs,