The substitution by the parties of Emerson as plaintiff, made him the party entitled to recover, and as such the undertaking took effect in his favor as the plaintiff entitled to a return of the property. The defendant’s liability became fixed on recovery of the judgments—either to return to the plaintiff the property or to pay the value of the property to the extent of the penalty.
This point does not appear to have been made on the trial. If not it cannot be taken here, because it might have been obviated by further proof if necessary. There is nothing in the other objections, calling for any notice, except that in regard to the allowance of interest beyond *44the penalty. The judgment was for a larger sum than the amount fixed in the undertaking. This warranted a recovery for the whole amount stated therein as the penalty. Ho more could be recovered thereon, either for principal or interest up to the date of the judgment, (Lyon v. Clark, 8 N. Y. Rep. 148,) inasmuch as the undertaking was not one merely for the payment of money, but conditioned for the return of the goods. (See cases cited, pages 153, 154.) That judgment was rendered on 30th March, 1863.- In the present case, judgment was rendered for the plaintiff for the penalty of the undertaking and interest thereon from the date of the judgment. This was in accordance with the.decision of the Court of Appeals in Brainard v. Jones, (18 N. Y. Rep. 35.) That action was on a replevin bond, and the recovery was for the penalty and interest. The defendants, although sureties, were held for interest beyond the penalty, upon the ground that after the recovey they were in default and bound to pay the penalty. A neglect to pay after that date made them in the wrong, and interest was due from them as in any other case, where money is not paid, when the creditor becomes entitled to it.
[New York General Term, January 6, 1868.Geo. G. Barnard, Ingraham and Sutherland, Justices.]
Comstock, J. says: “ The question is, what does the law exact of the obligor from an unjust delay in payment, after his liability is ascertained and the debt is actually due from him?” Interest was allowed in that case on the penalty.
Judgment should be affirmed, with costs,