Gopsill v. Decker

Headnote

Undertaking—approval of sureties not indorsed upon—justification —waiver.

Upon appeal to the Court of Appeals an undertaking was given with two sureties, to whose sufficiency the plaintiff excepted; upon examination one of them was approved, and the other not being considered sufficient, an adjournment was had to give the defendant time to give additional surety. Subsequently it was agreed by the attorneys of the respective parties, that both the

said sureties should be accepted, defendant’s attorney promising to have it so marked upon the undertaking by the court; which, however, was never done, although the appeal was taken as though it had been.

In this action brought upon, the undertaking against the sureties thereto, they claimed that it could not be maintained for the reason that the approval of the sureties had never been indorsed on the undertaking as required by section 196 of the Code. Held, that the objection could not be sustained: 1. Because it would enable the defendants to take advantage of their own wrong. 2. That the consent in writing by the plaintiff’s attorney, to accept the surety first objected to, was a waiver of the justification and no indorsement was necessary.

Appeal from an order made at the Special Term, granting a new trial.