It does riot appear from the record whether the bond upon which this action is brought was ever approved by a justice of the Municipal Court, but it does appear that the bond was never filed. It further appears that on the first day of October, the day intermediate between the service of the notice of justification and the time set for justification, the defendant in the attachment action was adjudicated a bankrupt and a receiver was appointed of the bankrupt’s property, who made a demand on the marshal for the goods. The marshal thereupon transferred title to the goods, which were in storage, to the receiver. The claimant Salman, still claiming to be entitled to the property involved in the suit and mentioned in his undertaking given to the attaching creditor, claimed it from the receiver and made a demand on him for the property. The receiver, upon some evidence presented to him by Salman of his alleged ownership, released whatever right he had to the goods in question upon Salman’s executing to him a bond for the protection of the receiver. Upon receiving such bond, the receiver directed that the goods, which were in the storage warehouse and title to which had been transferred to the receiver as above mentioned, be delivered to the claimant Salman. Ho order was made by the United States court directing this to be done. The receiver acted upon his own responsibility for what he deemed the best interests of the estate, feeling that he was secured by the bond given to him. Thereupon Salman obtained possession of the property.
I have taken this statement of the facts verbatim from the opinion of the learned trial justice, and upon these facts he has held that the plaintiff herein may bring an action upon the bond signed by the defendants herein to secure the release of the goods from the marshal. Obviously, the action can be sustained only upon proof of the delivery of the bond and of the breach of its condition.
The bond was in form a statutory bond, intended to be made in conformance with section 85 of the Municipal Court Act for the purpose of securing the goods previously attached by the plaintiff. This section requires that the claimant execute and file with the clerk a bond to the plaintiff with *12one or more sureties, approved by the marshal or by a justice. The statute provides further that “ the marshal must thereupon deliver the property claimed to the claimant.” The filing of the bond was not only for the benefit of the plaintiff but also for the benefit of the debtor who could bring an action upon the bond if the attachment should thereafter be vacated. It had no efficiency until it was filed, because under the statute the marshal had no right to deliver the goods until the filing and the approval were complete.
Nor do I believe that there is any force in the contention that, aside from the statutory liability upon the bond, it may be enforced as a common law obligation. Delivery to the plaintiff is essential to such a liability. As Mr. Justice Seabury aptly points out in his citation (5 Oye. '¡T40) : “ The essence of the question whether or not there has been a delivery consists in the intent of the obligor to perfect the instrument and make it at once the absolute property of the obligee.” In all the cases where the filing of the bond has been considered a formality not essential to the validity of the obligation, it seems to me that there was a delivery of a bond with the intention that the bond should immediately be considered a perfect instrument and that in all the cases the bond could be acted upon and was in fact acted upon without further acts or formalities. In the case under consideration, the copy of the bond was delivered to the obligee, but not to the person who was intended to act under that bond, with a notice of justification two days thereafter; and I must consider this notice as a clear expression of intention that the bond was not to be regarded as perfected until that time. It seems to me that the citation of Mr. Justice Seabury from the opinion of Toles v. Adee, 84 N. Y. 222, shows the distinction between the two cases: “ When the plaintiff’s attorneys consented to the proposition and accepted the undertaking, it became operative and binding,” etc. In that case the plaintiff’s attorneys waived the requirements of the statute and consented to accept a bond not complying with the formalities of a bail bond as sufficient to obtain the release of the defendant upon an order of arrest. They understood and agreed that the bond was to become *13immediately effective. In the case under consideration, the attorneys did not consent to any proposition, and the bond did not in fact become operative and binding and was in fact never acted upon. In the case of Haywood v. Townsend, 4 App. Div. 286, the court summarizes the facts. “ The defendants, it appears from the testimony, knew what the bond was for; that without it the trustee, Robert M. Townsend, could not acquire possession of the money that was left by the testatrix for the benefit of the legatees; they signed and executed the bond for the purpose of enabling him to get the money; when they delivered it to him and left it with him, after having executed it, it was, so far as any act of theirs necessary to be done to fix their liability upon the bond, complete * * *. At the time he delivered a sworn copy of it as a voucher of his authority and right to receive the trust fund the bond executed by the defendants was in existence, and its subsequent destruction after the trustee, upon the faith of its execution and existence, had secured the legacies, cannot alter the liability of the defendants.” If in the case under consideration the bond had been delivered to the marshal and he had acted upon it without filing, then the cases would be analogous; but the bond herein was never filed and was never, as far as appears in the record, delivered or shown to the marshal.
In Russell v. Freer, 56 N. Y. 67, as cited in Haywood v. Townsend, supra, the rule is clearly set forth (4 App. Div. 250) : “ Having, by signing the bond and giving it to the principal, placed it in the power of the principal to secure the money, and he having done so, it has, so far as the principal and sureties are concerned, served its purpose, and the defendants should not be permitted to repudiate the bond to the detriment of the parties it was apparently given to secure.”
Conceding, however, for the sake of argument, that there was a delivery of the bond, I fail to find in the record any proof of the breach of the condition or of any possible detriment to the plaintiff. The condition of the bond is in the form required by section 85 of the Municipal Court Act and for the purposes provided therein, i. e., to obtain posses*14sion of the property attached. While the condition of the bond is that the claimant, in case of failure to establish that he was the general owner of the property claimed, shall pay to the plaintiff the value thereof, with interest, yet this condition must be read and interpreted in connection with section 86 of the Municipal Court Act, which provides that “A judgment for the plaintiff, in an action upon a bond, given as prescribed in the last section, must award to him the value of the property seized and delivered to the claimant, with interest thereupon from the time of the delivery.” The condition, therefore, is not to pay the value of the property claimed, but the value of the property “ seized and delivered ” by the marshal to the claimant. The marshal has, however, never delivered any goods to the claimant upon this bond; he delivered the goods to the receiver in bank•ruptcy before this bond was filed or could have been filed. The receiver did, thereafter, deliver the goods to the claimant, but took a new bond from him. After the receiver in bankruptcy was appointed, the plaintiff herein had absolutely no interest in these goods; if they belonged to the debtor, the adjudication in bankruptcy destroyed the lien of his attachment; if they belonged to the claimant, then the claimant was entitled to them. The learned trial justice has found that the claimant was fraudulently attempting to obtain these goods. I think that his finding is amply supported by the evidence, but that fraud should entitle the receiver to recover upon the bond accepted by him and should not entitle the plaintiff to recover upon this bond. The failure to file the bond herein was the result neither of neglect nor of fraud. The defendant’s attorney destroyed the bond after the adjudication of bankruptcy, because at that time the obligee of the bond had no further interest in the goods and the bond was of no further use.
Judgment should be reversed.
Judgment affirmed, with costs.