Keck v. Gross — 26 N.Y.S. 1111

Majority

p. 1111

(6 Misc. Rep. 438.)

KECK v. GROSS et al.

(City Court of Brooklyn, General Term.

January 22, 1894.)

Headnote

1. Arrest in Civil Cases—Liability op Surety on Bond.

Failure of plaintiff in an action in which an order of arrest was granted to have the undertaking approved by the judge will not relieve the sureties from responsibility thereon.

2. Same—Action on Bond.

A party arrested in a" civil action can sue in the first instance on the undertaking, without proceeding against the party who procured the arrest.

Appeal from trial term.

Action by Meinrad Keck against Francis Gross and Louis Ossman. From a judgment in favor of plaintiff, defendants appeal.

Affirmed.

Argued before CLEMENT, C. J., and VAN WYCK, J.

M. L. Towns, for appellants.

Max Hallheimer, for respondent.

This is an action on an undertaking given in pursuance of sections 559 and 730 of the Code of Civil Procedure, on an order of arrest granted against this plaintiff in another action, in which there was a judgment in favor of this plaintiff (the defendant therein) for costs. The defendants herein demurred on the ground that the complaint did not state facts sufficient to constitute a cause of action. An order was granted, giving plaintiff judgment on the demurrer as frivolous, in pursuance of section 537 of the Code of Civil Procedure. This is an appeal from that order. We think the complaint sufficiently sets forth that the undertaking was duly given in pursuance of section 559 of the Code of Civil Procedure on the order of arrest. The failure of the plaintiff in the action in which the order of arrest was granted to have the undertaking marked “Approved” by the judge will not relieve the sureties of responsibility thereon. Gopsill v. Decker, 4 Hun, 625 ; Candee v. Wilcox, 14 Wkly. Dig. 245 . The party so arrested can resort, in the first instance, to the action on the undertaking, without pursuing his remedy against the party procuring the arrest. Wilson v. Field, Id. 378 . Order appealed from must be affirmed, with costs and disbursements, to be taxed by the clerk.