
    Joseph Boss, Plaintiff, v. J. Herbert Hutchinson, Defendant.
    (Supreme Court, New York Special Term,
    August, 1917.)
    Undertakings — appeal — justification of sureties — when motion to vacate denied —■ Code Civ. Pro. § 1335.
    Under section 1335 of the Code of Civil Procedure, which provides that the sureties on an undertaking on appeal “ must justify before the court below, or a judge thereof, or a referee appointed by the same, or a county judge,” the justification of sureties may be taken before the county judge of a county other than that in.which the action is brought.
    Where a notice of justification of the sureties in an undertaking on appeal was returned for the reason that the justification was not to take place in the county in which the venue of the action was laid, a motion to vacate and set aside the undertaking will be denied.
    Motion to vacate and set aside an undertaking on appeal.
    Isidore Faitt, for plaintiff and motion.
    Lynn Brothers, for defendant, opposed.
   Giegerich, J.

The plaintiff makes this motion to vacate and set aside the undertaking on the appeal given by the defendant upon the ground that the sureties on the undertaking failed to justify within the time prescribed by section 1335 of the Code of Civil Procedure. The sureties named in the undertaking are residents of the county of Monroe, and after the plaintiff’s exception to their sufficiency the defendant served a notice of justification to take place before a county judge of Monroe county at his chambers in the court house in the city of Rochester. On the day of its receipt the plaintiff’s attorney returned this notice with a statement that the reason for such return was that the justification for which the notice was served was not to take place in the county in which the venue of the action was laid. The question presented, therefore, is whether such a justification has. to be taken in the county in which the action is brought. Neither side cites any case decided in this state bearing upon the point. Upon searching through other portions of the Code for any indication of the legislative intent on the point in question, it is found that in section 772, which contains provisions as to what judges may take orders out of court, the jurisdiction of a county judge is limited to the judge of the county where the action is triable or in which the attorney for the applicant resides. So, too, section 2434, in making provisions as to what judges may entertain supplementary proceedings, limits the jurisdiction of county judges by express conditions dependent upon the county in which the execution was issued or other conditions therein specified. These provisions seem to indicate that where a power conferred upon a county judge is intended to be limited to judges of certain counties, such limitation is expressed in the statute. Section 1335, however* does not impose any limitation, bnt, on the contrary, uses the broadest language possible, namely, that the sureties “ must justify before the court- below, or a judgg thereof, or a referee appointed by the same, or a county judge.” Sections 578 and 1705 of the Code of Civil Procedure look in the same direction; the former section, while providing that the justification of the sureties on a bail bond may be taken before a county judge, limits the place to the county ‘ ‘ where one of the bail resides, or where the defendant was arrested,” while the latter section, dealing with the justification of sureties in actions of replevin, imposes the limitation that the justification must take place either in the county where the chattel was replevied, or in the county where one of the sureties resides. Considering all these statutory provisions together, I do not think it can fairly be inferred that, in using the broad language- employed in section 1335, the legislature intended to impose the limitation for which the plaintiff contends. The motion is denied, with ten dollars costs.

Motion denied, with costs.  