I dissent. It seems to be well settled that the obligation of a surety on a bail bond survives and binds his estate after death (5 Cyc. 126 ; United States v. Keiver, 56 Fed. Rep. 422), for as was said in the case last cited : “ Such obligations would be of but little force and service if they did not survive the death of the surety. It is a continuing obligation and binds the estate of the obligor upon liis death.” The serious question in the case is whether judgment upon a forfeited recognizance may be entered and docketed against a surety after his death. There is no express statutory provision either Way. All that the statute provides is that upon forfeiture the recognizance, with a certified copy of the order forfeiting the same, “ shall be filed by the district attorney ” in the oifiee of ■ the clerk of the county, who shall thereupon “ docket the same in the book kept by him for docketing of judgments.” (Laws, of 1882, chap. 4Í0, § 1480.) The duties imposed upon the district attorney-and the county clerk are mandatory, and the statute leaves them no option, even if they could be presumed in each case (as they cannot) to know'whether-the surety is alive or dead. The legality of this method of entering judgment is no longer open to question. (People v. Quigg, 59 N. Y. 83; People v. Cowan, 146 id. 348.) The moment the principal makes default and liis non-appearance is entered in the min*784utes the recognizance becomes ipso facto forfeited. ]SFo further or formal order is necessary to fix the liability of the surety. His obligation to pay the amount of the bail then accrues and becomes absolute upon the record. (People v. Bennett, 136 N. Y. 482.) The entry of judgment in the name of a dead man is not necessarily irregular or void. Under certain circumstances it might be done under the common law practice,, and may be done under our present Code practice. Under the old practice it feould be done by entering the judgment as of the beginning of the term during which the death occurred. (Nichols v. Chapman, 9 Wend. 452.) Section 763 of the Code of Civil Procedure provides that “ if either party to an action dies after an accepted offer to allow judgment to be taken, or after a verdict, report or decision or an interlocutory judgment, but before final judgment is entered, the court must enter final judgment in the names of the original parties, unless the offer, verdict, report or decision or the interlocutory judgment is set aside.” Section 765 provides: “ This title does not authorize the entry of a judgment against a party who dies before a verdict, report or decision' is actually rendered against him. In that case the verdict, report or decision is absolutely void.” The distinction between the two classes of cases thus provided for is very obvious. If the debtor’s liability is definitely fixed, so that there is nothing left to litigate, the judgment, which is merely .the. formal record of the indebted ness, may be entered, notwithstanding the debtor has died. ' It then becomes conclusive evidence of the debt owing by his estate. . If, however, there is something left which may be open to further liti-. gation which the debtor cannot carry on, judgment cannot be entered against him and the claim against his estate must be otherwise established. By analogy it would seem, in the absence of any statute forbidding it, that a judgment upon a forfeited recognizance may be issued after the death of a surety, for there is nothing which he could,, if alive, have litigated. The amount of his. obligation is fixed by the bail bond, and .his liability thereon is fixed by the failure of his principal to appear, a fact of which he is not entitled to notice and which he cannot contest, except, perhaps, on a motion to vacate the judgment. The learned counsel for the appellant cites ns to a number of cases as authority for the general proposition that judgment, cannot be entered against a dead man. They all fall *785within the class of cases provided for by section 765 of the Code, and are not decisive of the present motion. I am, therefore, of the opinion that the judgment was properly entered in pursuance of the mandatory provisions of the act of 1882 quoted above, and that it cannot be attacked by the executor of the surety, except upon some ground that would have justified an attack upon it by the surety if alive. What the effect of such a judgment is it is not necessary now to inquire. It probably does not .become a lien upon, the real property or chattels real of the decedent, but establishes a debt to be paid in the course of administration. (Code Civ. Proc. § 1210.)
In my opinion, the order appealed from is right and should be affirmed, with ten dollars costs^and disbursements.
Clarke, J., concurred.
Order reversed, with ten dollars costs and disbursements, and motion granted.