Quarch v. Metz — 72 N.Y. St. Rep. 797

Majority

p. 797

Edward Quarch et al., Resp’ts, v. Joseph Metz, App’lt.

(New York City Court, General Term,

Filed February 7, 1896.) .

Headnote

1, Replevin—Surety—Release.

An order of the court, releasing one of two sureties on a replevin undertaking given by defendant upon reclaiming the property, does not bind the defendant or the cosurety, where neither is served" with notice of motion.

2. Same—Consent of plaintiff.

As soon as such undertaking is approved, after examination of the sureties, it becomes a fixed contract between the sureties and the plaintiff, which cannot be changed or disturbed by the court, or otherwise, except upon the consent of the plaintiff.

Appeal from an order, permitting one of the sureties on defendant’s undertaking given on reclaiming the property to withdraw therefrom.

Myers & Bronner, for app’lts ; Grossman & Vorhaus, for appellee.

—The plaintiffs replevied chattels, and

under the writ in replevin the sheriff took the same from defendant, who reclaimed the property, and gave an undertaking executed. by one Pius and one Reitman as sureties. After the justification, on examination, of these sureties, the undertaking was duly approved, and the sheriff returned the property replevied to defendant. _About a month thereafter-, the surety Reitman moved at special term, in this action, for leave to withdraw as a surety on the undertaking; and this motion was granted, againt plaintiffs’ objection, by the order from which they now appeal. This order provided for Reitman’s withdrawal, and directed the defendant, within three days after entry of order, to deliver the property replevied to the plaintiffs, and that defendant might thereafter reclaim and repossess himself of the same upon giving a new undertaking to plaintiffs, to be approved by a justice of this court, and

p. 798

further, directed that, upon such approval, Reitman be released from all liability except for such damages as plaintiffs had sustained before such approval of the new undertaking.

The surety Reitman’s notice of motion was directed to the attorneys for plaintiffs and to the attorney for defendant. The plaintiffs appeared, and opposed the motion; but the defendant did .not appear, and no proof of service upon him is made. The notice was not directed to, or served upon, Reitman’s cosurety, Pius, and she did not appear. Both the defendant and this co-surety should have been brought into court before either of them could be bound by the order. As soon as this reclaiming defendant’s undertaking had been approved, after examination of the sureties, it became a fixed contract between the sureties and the plaintiffs, which could not be changed or disturbed by the court, or otherwise, except upon the consent of the plaintiffs, for whose protection it was given, ' .

The order appealed from is reversed, with costs; and the motion is denied, with, $10 costs.

All concur.