Sutorius v. Dunstan — 59 N.Y. Super. Ct. 166

Majority

p. 166

EDWARD SUTORIUS, Appellant v. EUGENE W. DUNSTAN, Respondent.

Headnote

Undertaking given to procure an orcter of arrest, amount for which sureties are liable.

The complaint in this action charged the defendant, as one of the sureties ' upon an undertaking given to procure an order of arrest, and it was also averred therein that in the action in which the order was granted there was a judgment for costs for the defendant for a sum greater than $250, and that such judgment was paid. On the argument of the demurrer to the complaint, it was not denied that this payment enured to the benefit of the surety, this defendant, but it was claimed that he remained liable to ■ pay damages sustained by plaintiff by reason of the arrest, not exceeding $250. The undertaking of the surety is “ that if the defendant in the ac- . tion do recover judgment therein, or if it is finally decided that the plaintiff is not entitled to the order of arrest, the plaintiff in said action will pay all costs which may be awarded to the defendant, and all damages which he may sustain by reason of the arrest in said action, not exceeding the sum of two hundred and fifty dollars,” in accordance with section 559 Code Civil Procedure.

p. 167

Weld, that the sum specified (§250) is intended to describe the limit of the liability of the surety; that all costs and all damages shall be taken in conjunction, and that to them together shall be applied the words of the undertaking “ not exceeding the sum of two hundred and fifty dollars ; ” and costs having been paid to the extent of $250, the surety is not liable further upon the undertaking.

Before Sedgwick, Ch. J., and Truax, J.

Decided March 2, 1891.

Appeal by plaintiff from a final judgment entered for defendant, on the demurrer to the complaint.

Davison & Chapman, attorneys, and Charles Stewart Davison, of counsel, for appellant.

Daniel D. Sherman, attorney and of counsel, for respondent.

The complaint charged the defendant as one of the sureties upon an undertaking given to procure an order of arrest. It was averred that in the action in which the order was granted there was a judgment for costs for the defendant for a sum greater than $250, and that such judgment was paid. On the argument it is not denied that this payment enured to the benefit of the surety, this defendant. But it is claimed that he remained liable to pay damages which the plaintiff sustained by reason of the arrest, not exceeding $250. And the action is to recover the damages to that extent.

The undertaking follows the words of § 559, Code Civil Procedure. The undertaking of the surety is “ that if the defendant recovers judgment, or if it is finally decided that the plaintiff was not entitled to the order of arrest, the plaintiff will pay all costs which may be awarded to the defendant, and all damages which he may sustain by reason of the arrest, not exceeding the sum of $250.

p. 168

The wording is such that the meaning may be obscure, yet on the whole it should be held that the sum specified is intended to describe the limit of the liability of the surety. To make such a provision practically effective in protection of the person arrested, there should be a surety or a party that possesses means enough to fulfil the undertaking, and a method prescribed for ascertaining the means. It has always been the practice to require some kind of proof on this subject.

On this subject § 812, Code Civil Procedure, requires that a bond or undertaking executed by a surety, must be accompanied by his affidavit to the effect that he is worth the penalty of the bond, or the sum specified in the undertaking, etc. There is an intent to place the penalty, if it be a bond, on the level with the sum specified in the undertaking. It is evident that the latter is a sum in which the surety undertakes. There is no reason for excluding from the justification a test of sufficient means to pay costs, and yet this would be the result if the sum- specified referred only to damages. These considerations guide us to the result that the section intends that all costs and all damages shall be taken in conjunction, and that to them together shall be applied the words u not exceeding the sum specified in the undertaking.”

As on the argument it is conceded that the defendant has upon his undertaking the benefit of the payment of costs to the extent of $250, he is not further liable upon the undertaking for the damages from the arrest.

Judgment affirmed, with costs.