United States Land & Investment Co. v. Bussey — 25 N.Y. St. Rep. 125

Majority

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The United States Land and Investment Company, App’lt, v. William G. Bussey, Resp’t.

(Supreme Court, General Term, First Department,

Filed July 9, 1889.)

Headnote

1. Replevin—Additional undertaking cannot be required.

The court has no power to require the plaintiff to give an additional undertaking in a replevin suit, upon the ground that the value of the property replevied is greater than that stated in the plaintiff’s affidavit.

2. Same—Sole check upon undervaluation by plaintiee oe property REPLEVIED.

The sole check upon undervaluation in plaintiff’s affidavit in replevin proceedings, is the risk that the plaintiff runs that the property may be rebonded at the value given by him.

Walter 8. Cowles, for app’lt; William G. Bussey, in person, for resp’t.

The question presented by this appeal is one of power. The plaintiff, in its replevin affidavit, stated the actual value of the property claimed, and gave an undertaking appropriate thereto. The defendant insists that the value thus stated is less than the true value. He excepted, however, to the plaintiff’s sureties, but, before justification, he moved to require of the plaintiff a larger undertaking. The court thereupon ordered a reference to ascertain the real value, and the plaintiff appeals from the order. If the court had no power to require an additional undertaking, the reference was, of course, superfluous, and the order should be reversed. We think the plaintiff is right in its contention, and that the court without further inquiry should have denied the motion for want of power.

The court’s authority on this appeal must be looked for in the statute, and it is not to be found there. The replevin system is a minute and complicated one. It cannot be altered or broken in upon, to meet the hardship of a particular case. If there has been a casus omissus, which may lead to oppression, it is for the legislature to remedy the mischief. When a plaintiff deliberately minimises the value of the property claimed, he runs the risk of a re-bonding at the same value. That would seem to be the sole check upon undervaluation, provided by statutes. That check is amply sufficient, where the defendant is able to re-bond. If he be . unable to re-bond, there is no other way of securing him.

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He must then rely upon the plaintiff’s personal responsibity, in addition to the undertaking given. The authority of the court is distinctly specified, tinder section 1705, it is limited to the provisions regulating the justification of bail. Thus the court may, upon the replevin justification, permit the substitution of new sureties, or of a new and amended undertaking. But it cannot try, in this preliminary way, the question of value, and direct the plaintiff to give an undertaking appropriate to the conclusion arrived at on that head. 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.

Courts have exercised power of the general character contended for, only where the granting or withholding of a provisional remedy was within the judicial discretion. A judge may grant an attachment upon an undertaking in $250, and the court may vacate it, unless the plaintiff increased the security. So also with an injunction or order of arrest. The replevin writ, however, is not discretionary. It is not even ordered by the court or by a judge. The plaintiff’s requisition is deemed the mandate of the court (§. 1694) but the court has no control over its issuance, nor over the subsequent proceedings, except to vacate for irregularities and, in general, to see that the statutory provisions are duly executed.

In DeReguie v. Lewis ( 3 Rob., 708 ), it was said, in considering similar provisions of the old Code, that a party was not entitled 1 c to have any other than the undertaking approved by the sheriff, however inadequate the amount for which it is given.” The same strict view was taken with, regard to another branch of the statute in Manley v. Patterson( 3 Code R., 89).

Edmunds, J., observed that after the property has 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, could 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 had provided no remedy, except the sheriff’s responsibility, for the plaintiff’s omission to justify his sureties.” This difficulty seems to have been obviated by the present Code (sec. 1706).

In Kenehue v. Williams ( 1 Duer, 597 ), Duer, J., denied a motion to set aside the proceedings made upon the ground that the plaintiffs, in the affidavits which they were required to make to obtain a delivery, had sworn that the document (which was the subject of the writ) had a certain value. “I apprehend,” he said, “ that I have no right now to say that this allegation is erroneous or false.”

In Nosser v. Corwin ( 36 How. Pr. Rep., 543 ), Brady, J , remarked that “the remedy which is accomplished is per-

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feet without any allowance either by the court, or judge, or sheriff, depending only upon the condition that sureties be given in conformity to the statute.” See also Hofheimer v. Campbell ( 59 N. Y., 269 ), and Cullen v. Miller ( 5 Abb. N. C., 282 ).

The analogies from the rules with regard to security for costs, stays of proceedings on appeal, and similar subjects, favor the view which we entertain as to this limitation of power. It was not until special provision was made by statute, that the courts felt authorized to require a new undertaking on appeal, even when the original sureties had become insolvent. Willett v. Stringer, 15 How. P. R., 310 . So, also, as to security for costs. The Hartford Quarry Co. v. Pendleton, 4 Abb. P. R., 460 ; opinions of Brady, J., at special term, and of Ingraham, J., at general term.

And in the late case of Republic of Honduras v. Soto (20 N. Y. State Rep., 749), the court of appeals held, that, while under the present Code the court may require an additional undertaking, when the original undertaking in $250 is insufficient, yet where there is a desposit of $250, instead of an undertaking, the plaintiff cannot, under any circumstances, be required to make a further deposit.

This is simply because the power is specified in the one case and not in the other. The court (Ruger, Ch. J.) quoted from The People v. Woodruff ( 32 N. Y., 364 ): “It is wiser and safer to leave the legislative department to supply a supposed or actual casus omissus than attempt to do it by judicial construction.”

The order should, therefore, be reversed, with the usual costs and disbursements, and the motion denied, with costs.

Van Brunt, Ch. J., and Brady, J., concur.