The plaintiff brought an action to recover of the defendant certain bonds, and caused to be executed and delivered to the sheriff a proper undertaking and requisition to take possession of the same pending the action. This was executed October 31, 1885. On November 5, 1885, the cause came on for trial, and a verdict was directed in favor of plaintiff, and a judgment entered thereon, which judgment, together with a notice of entry, was duly served upon defendant, November 7, 1885. The defendant, within the time prescribed, served an undertaking to reclaim the bonds, with notice of justification of the sureties, on November 9, 1885, two days after entry of judgment. Plaintiff procured an order to show cause on which to move to set aside the defendant's undertaking, and obtained a stay of defendant's proceedings. Pending the motion to set aside the undertaking and before the hearing thereon, an appeal from the judgment was taken by the defendant, and proceedings to enforce the judgment were stayed. The motion when heard by the Special Term was *Page 307 denied, and according to the opinion of the General Term it was disposed of upon the ground that the plaintiff had not secured the right to enforce the judgment obtained, and could not, therefore, cut off the defendant's rights initiated by the proceedings under section 1704 of the Code of Civil Procedure.
The appellant claims that there is no right in the defendant to reclaim chattels after a trial of the action upon the merits, and the entry of a judgment against defendant, which adjudges the delivery and possession of the chattels to the plaintiff, and it relies upon certain provisions of the Code relating to the subject, viz.: §§ 1694, 1703, 1704, 1717.
The answer to this position is that the condition of the undertaking did not become fixed and determined until the final determination of the action, and this could not be until the appeal had been disposed of. The defendant only became bound to deliver the chattels recovered when the plaintiff had a right to enforce a judgment in its favor. This right did not exist so long as the appeal was pending. Upon the judgment being finally affirmed upon appeal, the contingency would happen upon which the liability of the sureties would be fixed and determined, and a delivery of the chattels would be finally adjudged. In the meantime, the proceedings had for justification of the sureties before judgment was entered could be completed afterward, and before judgment was obtained upon which the final liability of the sureties depended. The failure of the sureties to justify, and of the allowance of the undertaking, was caused by the stay of proceedings granted on the order to show cause why the undertaking should not be set aside, and the defendant was thus prevented from perfecting the undertaking. The stay mentioned became vacated when the motion was denied. If the defendant's undertaking, the perfecting of which had been stayed, was defective and insufficient, ample provision is made for amending it, which amendments may be allowed by the court in furtherance of justice. It is not now necessary to determine how this should be done, as it is for the Supreme Court to regulate its own practice, *Page 308 etc. There is no sufficient reason for setting the undertaking aside upon this motion because it is not in conformity with the provisions of the Code. Such objection would properly arise upon the application for the allowance of the undertaking, and if at that time the objections were deemed valid by the judge, it could be amended.
The opinion of the General Term mainly covers all the questions raised.
The order should be affirmed.
All concur, except ANDREWS, J., not voting.
Order affirmed.