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Culliford v. Gadd

22 N.Y.S. 539 Court N.Y. Super. Ct. Decision date 1893-03-06 English

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p. 539
CULLIFORD v. GADD.
(Superior Court of New York City, General Term.
March 6, 1893.)

Headnote

Appeal Bond—Objection to Sureties.
If a respondent fails to except within the time allowed to the sureties on an undertaking for appeal to the court of appeals from a judgment of the superior court of the city of New York, the undertaking becomes perfect, for the purposes of the appeal, and a motion in the lower court to cancel the same for fraudulent representations made by the sureties, or, in the alternative, to require them to submit to an examination as to their qualifications, is properly denied; respondent’s remedy, if the circumstances of-the sureties are precarious at any time after the undertaking is executed, being under Code Civil Proc. § 1308, providing for an order in the appellate court requiring a new undertaking in such case.
Appeal from special term.
Action by Elizabeth H. Culliford against Montgomery Gadd. From a judgment for plaintiff, defendant appealed to the general term, where the judgment was affirmed. 17 N. Y. Supp. 457 ; 18 FT. Y. Supp. 208. He thereupon appealed to the court of appeals, and gave an undertaking with sureties. Plaintiff afterwards moved at special term to cancel the undertaking on account of alleged fraudulent representations made by the sureties, or, in the alternative, to require them to submit to an examination as to their qualifications. From an order denying the motion, plaintiff appeals.
Affirmed.
Argued before SEDGWICK, C. J., and DUGRO and GILDER-SLEEVE, JJ.
F. Speigleberg, for appellant.
Sidney Harris, for respondent.'

As the respondent failed to except to sureties within the time allowed, the undertaking became perfect for the

p. 540
purposes of the appeal. The reason advanced for the plaintiff’s failure to except to the sureties does not satisfy us that he should now be accorded an opportunity to examine them. If the circumstances of the sureties are, at any time after the execution of the undertaking, precarious, section 1308, Code Civil Proc.,[1] suggests a way for relief. We believe the order of the special term should be affirmed, without costs.

1 Code Civil Proc. § 1308, provides for an order, in the court in which an appeal is pending, requiring appellant to file a new undertaking, where, since the execution of the undertaking, the sureties have become insolvent, or their circumstances precarious.