No consideration is necessary to support an undertaking given upon a claim for the delivery of personal property pursuant to the *567Code besides the claim itself. That is sufficient to uphold the validity of the undertaking. (Bildersee v. Adin, 12 Abb. Pr. [N. S.], 324, and cases cited.) Nor is it necessary that the undertaking should express a consideration. (Oases, supra / Laws of 1863, chap. 464.) In all cases the undertaking must accompany the claim, and it becomes an effectual instrument before there has been a delivery of the property. In this case the property in dispute consisted of iron water pipes belonging to the plaintiff which the Rochester Water-works Company had laid down in the streets of that city. The plaintiff, being about to take proceedings to recover the possession'of the property, the Water-works Company treated it as in the actual possession of the plaintiff, and brought an action against him to recover the possession thereof. The undertaking in question was given in that action, and the possession of the property remained undisturbed. The formal proceedings, prescribed by the Code when a delivery is claimed in an action to recover the possession of personal property, were omitted. The'object of such omission evidently was to obtain a determination of the ownership of the property without the expense and injury which would necessarily have attended an actual transfer of the possession thereof, first to one party and then to the other. The court below held that this omission destroyed the character of the instrument ás a statutory undertaking, and that it was void for lack of consideration to support it.
We are of opinion that the court erred. It was competent for the parties to the action to waive the useless formality of a double replevy. They did so, and the rights and interests of the sureties in the undertaking were in no degree affected thereby, except that their liability was diminished by the saving of fees and expenses of the sheriffs which would have been incurred upon an actual replevy. The case does not show that any different result would have followed an actual replevy, than that which was accomplished by omitting it. The undertaking, on its face, purports to have been given in an action brought by the Water-works Company against the plaintiff in this suit. It recites a claim for the delivery of the property of the company, and the' defendants undertake that the company shall return the property to the plaintiff in this suit, in ease a return shall be adjudged. We think these facts estop *568the defendant from denying' that the property was claimed by the company, or that it was taken out of the possession of the plaintiff in this suit and delivered to the company. (Coleman v. Bean, 1 Abb. Ct. App. Dec., 394; 12 Abb. [N. S.], supra.) Such facts also constitute an ample consideration for the undertaking, if one is necessary.
The case contains no finding respecting the discharge in bankruptcy of the defendant Utley. That subject, therefore, is not before us.
Eor the error stated, the judgment must be reversed and a new trial granted, with costs to abide the event.
Present — Mullin, P. J., Smith and Gilbert, JJ.Ordered accordingly.