The plaintiff commenced an action against the defendant Warren, and caused him to be arrested by the sheriff, Habcrstro. The sheriff took from him an undertaking, signed by two sureties, who failed to justify on being excepted to by the plaintiff. The plaintiff obtained 'a judgment against Warren, and an execution against his property was returned unsatisfied, and one against his person, that he could not be found. The second action was then commenced against the sheriff. During its pendency, and within twenty days after its commencement, the bail in the first action surrendered the defendant Warren, and the sheriff received him into his custody. Instead of keeping him, the sheriff surrendered him to one of the coroners of the county of Erie, who permitted him to go at large on giving a new undertaking. Thereafter the sheriff and the bail in the first action gave notice of the motion, which resulted in the order from-which this appeal is taken.
Upon the failure of the sureties in the first undertaking to justify, the- sheriff became liable as bail. (Code of Civil Proced*3ure, § 587.) The sureties were not liable, thereafter, as bail (Clapp v. Schutt, 44 N. Y., 104), but they remained liable to the .sheriff for all damages which he might sustain by reason of their omission to justify. (Code Civil Procedure, § 589.) Section'595 of the Code of Civil Procedure provides, that when the sheriff is liable as bail, he has all the rights and privileges, and is subject to all the duties and liabilities of bail. One of the rights and privileges of bail is that they may surrender the defendant in their own exoneration. (Code Civil Procedure, § 591.) But by the express terms of the statute, the surrender must be made to the sheriff. (Code Civil Procedure, §§ 591, 592.) When the sheriff seeks to exonerate himself from liability, as bail, by surrendering the defendant, he must re-arrest him and surrender him to the custody of the jail. (Sartos v. Merenques, 9 How. Pr., 188 ; Brady v. Brundage, 59 N. Y., 310.) The sheriff seems to have supposed that it was Ms duty to surrender the defendant to the coroner ; but he was under no such duty, and the coroner had no right to receive Mm or to detain Mm in custody. There was no order of arrest or process directed to the coroner. The sheriff was not a party to the action in wMch the order of arrest was issued, and so the case was not within the statute authorizing the. coroner to act where the sheriff is a party. (Code Civil Procedure, § 172.) The undertakmg taken by the coroner was a nullity, and if the sheriff is exonerated the plamtiff is without remedy.
Independently of the other points made by the appellant’s counsel, it follows, from these views, that the order appealed from should be reversed.
Present — Talcott, P. J., Smith and Hardin, JJ.Order reversed, with ten dollars costs and disbursements.