Hooker agt. Townsend.

ises, pursuant to the judgments herein, to the amount of seven thousand five hundred dollars in each of said actions Nos. 1 and 2." Pursuant to this order the appellants gave an undertaking with Runyon W. Martin and Howard A. Martin as sureties. Runyon W. Martin was examined as a surety, and the examination of Howard A. Martin was adjourned to 6th September, 1875. Failing to appear on this day the justification of both sureties was dismissed. On 7th September, 1875, an order was obtained requiring plaintiff to show cause why both sureties should not be allowed to justify, and then under this order Howard A. Martin was examined as a surety, and on the tenth the sufficiency of the undertakings and of the sureties, Runyon W. Martin and Howard A. Martin, was submitted to Mr. justice BRADY for his decision, and he approved the form of the undertaking and the sufficiency of Runyon W. Martin (see his decision and the testimony of Mr. Wandell), but required appellants to produce another surety in the place of Howard A. Martin. In this decision of Mr. justice BRADY we have an adjudication that the form of the undertaking was sufficient; in other words, that the undertaking as to form complied with the order that permitted it to be given, a decision binding on the appellants, on the respondent and on the surety, who was approved. The decision of Mr. justice BRADY was filed 14th September, 1875, but the order under it was not entered until the twenty-fourth. No weight should be given to the proposition of defendant's counsel that because this order was entered after the defendant gave his undertakings, the latter was released from his obligations. On the 17th September, 1875, the defendant's undertakings were filed by which the defendant undertook: 1st. That the appellants would pay all costs and damages that might be awarded against them on said appeal not exceeding $500 (Sec. 334, Code). 2d. In the further sum of $7,500 that if the said judgments or any part thereof were affirmed the appellants would pay any deficiency arising upon the sale of said premises (Sec. 338). The defendant was examined as a surety and the question whether his undertakings complied with the order of July 17, 1875, and the sufficiency of the defendant as a surety were submitted to Mr. justice DONOHUE for his decision and he decided that the undertakings did comply with the order of July 17, 1875, and that the surety was sufficient. His decision, indorsed on the outside wrapper of the two undertakings and the justification, is in these words: "The within undertaking is hereby approved as to its form and the sufficiency of its surety. Dated 22d September, 1875. CHAS. Donohue, J. S. C." Here there is a second adjudication as to the form of the undertaking, binding until reversed, upon all interested parties, and it is submitted that the court at circuit will not review these adjudications. But the defendant says that Runyon W. Martin was released because his co-surety Howard A. Martin was not approved, and therefore the defendant is not bound. To this the plaintiff answers: 1st. The court at chambers has decided that the undertakings of Runyon W. Martin

Hooker agt. Townsend.

and of Townsend comply with the order of 17th July, 1875, and that means that as that order required two sureties, so two sureties are furnished on two bonds. 2d. Under section 340 of the Code of Procedure undertakings could be in one or more instruments (Gottwald agt. Tuttle, 7 Daly, 105). 3d. Undertakings could, under the old Code, be either joint or several in form (Wood agt. Fisk, 63 N. Y., 248-9). 4th. The defendant is liable on his undertakings, even if Runyon W. Martin is not liable on his, and the defendant would be if no other undertakings had been given. Because: (a.) The provision for two sureties is for the benefit of the respondent, and if he waive one the bond is not invalidated (Ward agt. Whitney, 3 Sandf., 899; Shaw agt. Tobias, 3 N. Y., 188; Gottwald agt. Tuttle, supra). (b.) Should the court review the decisions of justices BRADY and DONOHUE as to the form of the bonds, and come to the conclusion that the bonds of defendant do not comply with the order of 17th July, 1875, the defendant may still be held liable as on a common law bond (Werner agt. Ross, 9 Abb. New Cases, 385, 390; Decker agt. Judson, 16 N. Y., 442). (c.) Should the court hold that the undertaking was not in the form called for by the Code or the order of 17th July, 1875, yet as it secured the end for which it was given, and stayed proceedings, the sureties are liable (Chamberlain agt. Applegate, 2 Hun, 510; Hill agt. Burke, 62 N. Y., 111; Gibbons agt. Berhard, 3 Bosw., 638; Gerould agt. Wilson, 81 N. Y., 578). The defendant also says that there was no consideration for his bonds, because as a matter of law the proceedings under the judgments of foreclosure were not stayed by his and Runyon W. Martin's undertakings. The court, at chambers, thought differently when it approved the form of the undertakings of Runyon W. Martin and of the defendant, and Mr. Wandell says the proceedings were in fact stayed. After justices BRADY and DONOHUE had decided that Runyon W. Martin and Townsend were sufficient sureties and that the undertakings were in proper form, could the plaintiff, because he might be of a different opinion, enforce his judgment? Would he not be guilty of a contempt of court should he do so? Is it not more reasonable to regard the decisions of justices BRADY and DONOHUE as adjudications binding upon the appellants, the respondents and the sureties? If they cannot be so regarded and treated as final adjudications the anomaly is presented of a decision binding upon the respondent because no appeal from the allowance of an undertaking can be taken, but not binding on the appellant or his surety. But the proceedings were stayed the moment the undertakings were given, and the stay was continued when the undertakings were approved as to form and the sureties as to sufficiency. Why, after the respondent had objected to the form of the undertakings and the sufficiency of the sureties, was the question of form and sufficiency presented to the court if it was not to procure a decision on the questions of form and sufficiency, that the respondent might prosecute his judgments, if the decisions were in his VOL. I 16

Hooker agt. Townsend.

favor, and the appellants stay its prosecution if the decision were in their favor. As a matter of fact the proceedings having been stayed, because the defendant gave his undertakings, it is really of no importance to consider whether the appellants were on the undertakings legally entitled to a stay. The stay was obtained by virtue of the undertakings, and that was a consideration (Coleman agt. Bean, 32 How. Pr., 380 [Ct. of App.]). The defendant is estopped contradicting any recital in his undertakings (Coleman agt. Bean, 32 How., 370; 1 Abb. Ct. of App. Cases, 394; Bank of U. S. agt. Housman, 6 Paige, 535; Diossy agt. Morgan, 74 N. Y., 11). The defendant having executed the undertakings and given them as valid and complete instruments, and the respondent having been delayed in the p:osecution of his judgments by reason thereof, the undertakings are valid and binding on defendant (Russell agt. Freer, 56 N. Y., 67). ln Shaw agt. Tobias (3 N. Y., 192), the court said: "But after the plaintiff has obtained possession of the property in dispute by acting on the bond as a lawful and valid security, neither he nor his surety ought to be permitted to get rid of it by alleging that it is not as strong or as perfect as the respondent might have required him to make it. It is enough that it contains all the essentials of a valid contract and answers all the purposes intended by the statute." If the undertakings do not comply with the terms of the order or of the statute, that fact will not avail the surety, for "the substance is looked for more than the form, even though it be a surety that is to be held " (Gerould agt. Wilson, supra, 81 N. Y., 578; Ring agt. Gibbs, 26 Wend., 502). The court held on the trial that both the defendant's undertakings were approved, they having, with the written examination, been filed together and Mr. justice DONOHUE having indorsed his decision upon the outside wrapper. The approval under the old Code was not necessary to give validity to the undertakings. The approval was for the benefit of the respondent and might be waived by him (Gopsill agt. Decker, 4 Hun, 625; Ballard agt. Ballard, 18 N. Y., 491; Decker agt. Anderson, 39 Barb., 346). The plaintiff is entitled to recover interest on the penalty of the undertakings from the time the liability accrued (Purdy agt. Phillips, 11 N. Y., 406; Emerson agt. Booth, 57 Barb., 40; Brainerd agt. Jones, 18 N. Y., 35; Code Civil Proc., sec. 1915). And the interest recoverable is to be computed at the rate of seven per cent to 1st January, 1880, and thereafter at six per cent (Rouse agt. Northern Ins. Co., 12 Weekly Dig., 85; Dows agt. Kidder, 3 Law Bull., 62; Little agt. Banks, 85 N. Y., 267). Judgment should be ordered for the plaintiff for the amount of costs, $228.23, with interest from 7th April, 1877, and for the penalty of the two undertakings, $15,000, with interest from 4th June, 1877.

CASES CITED by DefendanT'S COUNSEL.

Manning agt. Gould (90 N. Y., 476). The undertaking in this case was given under the Code of Civil Procedure, which expressly provides (Sec. 1335) that a "failure to justify and to procure an allowance is the same

Hooker agt. Townsend.

if the undertaking had not been given." The question before the court was (p. 479)" whether the sureties to an undertaking given on appeal to the general term of the supreme court or of a superior city court, when excepted to, and they fail or refuse to justify, and justification is not waived by the respondent, are nevertheless bound by the conditions of their undertakings." That is not this case, because the surety here did justify and was approved (Post agt. Doremus, 60 N. Y., 371). On an appeal from an order granting a new trial the appellants gave an undertaking which provided that "if the judgment so appealed from" was affirmed, the appellant would "pay the amount directed to be paid by said judgment." The court of appeals held that as no judgment had been appealed from, no liability could attach because of this provision in the undertaking, and it is this part of the undertaking that is discussed in the opinion of the court. There is nothing in the whole opinion inconsistent with plaintiff's right of recovery herein, but on the contrary there is a plain indication of the opinion of the court that if a respondent is compelled by the action of the court, in respect to an undertaking, to refrain from any action, the surety on the undertaking is liable (Gross agt. Bouton, 9 Daly, 25). In this case it appeared that the appellant in four actions had given undertakings on appeal, with the defendants B. and C. as sureties. B. justified, C. did not. An order was then made that the appellant be allowed to substitute a new surety in place of C., and that new undertakings should be executed. The appellant filed new undertakings with new sureties who justified, and the new undertakings were approved by the justice. The undertakings executed by B. and C. were not presented to the justice for approval, and the sufficiency of B. and C. was not passed upon. This action was brought against B. and C. upon the undertakings executed by them, and it was held that the action would not lie. There seems to be no analogy between this case and the one at bar. If it shall be thought that the expressions in the opinion of Mr. justice VAN BRUNT in this action are inconsistent with the opinion of the general term in Gottwald agt. Tuttle (7 Daly, 105) it is proper to observe that the opinion of Mr. justice VAN BRUNT in Gross agt. Bouton is not concurred in by justices DALY and LARREMORE, but that they concur simply in the result of his conclusions, and that his decision at special term in Gottwald agt. Tuttle was reversed by the general term (Halsey agt. Flint,15 Abb. Pr., 367). In this action the defendants had given an undertaking upon appeal to pay all costs and damages which might be awarded against the appellant, not exceeding $250. An undertaking to stay proceedings under the judgment was not given, and the court held that the sureties were liable only for the costs on the appeal and not for the interest on the judgment appealed from. In its opinion the court remarked: "It is not probable that it (the undertaking) was understood on either side as designed to effect a stay of proceedings." The attention of the court is called to that part of the opinion which holds that if the undertaking were intended as

Horton agt. Carrington.

a stay of proceedings all parties would be bound by it as such. The court say (p. 370): "I am inclined to think that if it were obvious that the undertaking was intended as a stay of proceedings, and was defective only in some slight particulars, the omission to object to it or to disregard it until after judgment in the appellate court would be regarded as tantamount to an acceptance of the undertaking as a stay of proceedings, and that both parties would be bound by it as such." The court did not apply the rule in that case because: 1st. It was not sufficiently obvious that the undertaking was intended as a stay of proceedings. 2d. There was no evidence that the respondent treated it as intended, as a stay of proceedings (Watt agt. Watt, 15 Abb. Pr., 367, note). In this case the defendant moved, in an action for the foreclosure of a mortgage, for a stay of proceedings on an appeal to the court of appeals upon a proposed undertaking to pay all costs and damages not exceeding $250. The court held this undertaking not sufficient to stay proceedings and directed an undertaking to be given under section 338. There is nothing in this case pertinent to the questions at issue in the action at bar. Judgment should be ordered for the plaintiff.

SUPREME COURT.

ALONZO HORTON, as overseer of the poor of the town of Hanover, &c., agt. ELIAS CARRINGTON.

Overseer of the poor - Oath of office-Excise laws - New trial-Acts of de facto officer, to what extent valid.

In an action brought by N., as overseer of the poor, to recover a penalty for the violation of the excise laws, N.'s term of office expired during its pendency and M. was elected to succeed him, but he afterwards resigned, and H., at a special town meeting, was elected his successor, and by order of this court, entered upon stipulation, the action was continued in name of H. It was objected on the trial that neither N. nor M. had taken the oath of office, as was required to be done by the amendment to the constitution, and that therefore the action had not been lawfully commenced by N.:

Held, first, that as N. had taken and filed the oath, which had previously been required by statute, and given the usual bond (although the oath was defective under section 1, article 12 of the constitution), and then entered upon and discharged the duties of the office, he held it under the authority of a lawful election, and by at least a colorable compli