I think the demurrer was not well taken, and that the decision at the x special term, sustaining it, was erroneous. The complaint avers that the justice refused to approve the undertaking because he did not consider "Berretta, one of the sureties, competent, and that he ordered the plaintiff to find some one else instead of Berretta. That another surety may be substituted for the one who fails to-justify is contemplated by sec. 341 of the Code. Before the Code, if one of the bail failed to justify and was rejected, the bail-piece was regarded as a nullity, and a new bail-piece was required, and a new notice of justification. (Lewis v. Gradderrer, 5 Barn. & Aid. 704.)
The bail, when excepted to, were considered as no bail, unless they justified. If they did not, the court would order their names to be stricken out of the bail-piece, although, until this was done, they might be - proceeded against. (1 Tidd Pr. 258, 9th Lond. Ed.)
Our Court of Errors, however, held in the unreported *107case of Drummond v. Watson (see 4 Comst. 171), that the sureties in an error bond, after exception and failure to justify, were discharged without any further proceeding.
But the Code has made an important change. It provides-that the undertaking prescribed by sec. 335 may be in one instrument or several, at the option of the appellant, which avoids the difficulty in the former practice, where there could, be but one bail-piece.
The defendant’s undertaking by a separate inst ument was good, and whether Clapp, the other surety, was answerable or not, the defendant was estopped (Decker v. Judson,. 16 N.Y. 446, 447, 449; Hill v. Burke, 61 id. 115, 116, 117; Shaw v. Tobias, 3 id. 191, 192) by the instrument which he-signed, the appellants having had the benefit of the consideration for the defendant’s undertaking, namely:—a stay of the proceedings until the decision and judgment of the general term of the Superior Court was given; which is to-be assumed from the averment in the complaint, that the judgment appealed from was affirmed, and that the appellant has not paid any part of it, or delivered up the property to the plaintiff, the judgment appealed from being that the plaintiffs here, who were the defendants, were entitled to-the possession of the property. The undertaking which the-defendant signed has accomplished all that it was intended to effect, and it does not lie with him to object that the prior undertaking was discharged as respects Clapp, because the court refused to approve it, not considering Berretta sufficient.
The defendant made no stipulation that any other person was to become cosurety. The name of no other person appears in the instrument, and no such understanding can be implied. He agreed that if the judgment was affirmed, or the appeal dismissed, he would pay the amount of the judgment. The consideration for his undertaking has been received, and so far as respects his liability, it is immaterial whether Clapp is liable as surety or not.
Joseph F. Daly and Yah Hoeseh, JJ., concurred.
Order sustaining demurrer reversed.