
    BELLINGER a. GARDNER.
    
      Supreme Court, First District; Special Term,
    
    February, 1856.
    UNDERTAKING ON ARREST.-AMENDMENT.
    The undertaking for costs and damages, required by section 182 of the Code to be given “ on the part of the plaintiff,” on his obtaining an order of arrest, need not necessarily be executed by the plaintiff personally.
    It is within the discretion of the judge issuing the order, to accept an undertaking executed by a surety or sureties only, or to require that it be executed by the plaintiff.
    His exercise of discretion on this point cannot be drawn in question on motion to discharge from arrest.
    The case of Richardson a. Craig (1 Duer. 666) — doubted.
    
      It seems, that a defective undertaking may be allowed to be amended on motion to discharge from arrest.
    Motion to discharge the defendant from arrest.
   Davies, J.

This is a motion to discharge the defendant from arrest, on the ground that the undertaking executed at the time the order of arrest was granted, was not signed by the plaintiff, but by the sureties only.

Section 182 of the Code requires that before making the order to arrest, the judge shall require a written undertaking on the pari of the plaintiff, with or without sureties, to the effect, &c. If the undertaking be executed by the plaintiff without sureties, he shall annex an affidavit that he is a resident and householder, or freeholder within the State, and worth double the sum specified in the undertaking.

It is contended in support of the motion, that this provision means that in all cases the judge shall require a written undertaking by the plaintiff, that is executed or signed by him ; and that an undertaking, not signed or executed by him, is to be regarded as a non-compliance with this provision of the Code. But is it not manifest, that “ on the part of the plaintiff,” or “in behalf of the plaintiff,” which are equivalent expressions, is denoted substitution, — that the thing is to be done by others in behalf of, or on the part of and not by the plaintiff himself.

By section 334, on an appeal to the Court of Appeals, a written undertaking must be executed “ on the part of the appellant.” By section 222, in reference to security upon injunction, it is provided that the court or judge shall require a written undertaking on the part of the plaintiff., with or without sureties,” &c. Under this section it has been held by the Superior Court, that when a non-resident plaintiff applies for an injunction, he must furnish an undertaking executed by a resident surety. (Sheldon v. Alberton, 1 Sand., 700). Is not such an undertaking one, “on the part of the plaintiff?” It seems to me that if the framers of the Code had intended that the undertaking should have been, in all cases, executed by the plaintiff, they would have said so, and not used the expressions which they have. These clearly indicate to my mind, that they did not intend to require the undertaking in every case to be executed by the plaintiff or appellant; and that if done on his part or behalf, with sufficient and satisfactory security, it is a full compliance with the Code.

I think this view is fully sustained by the case in this court, of Courier v. M’Namara. (9 How. Pr. R., 255). In that case a motion was made to set aside the order of arrest. Upon the making of it, an undertaking was presented executed by one Eerguson, on the part or behalf of the plaintiffs. Harris, Justice, held the undertaking sufficient, though it does not distinctly appear that the precise points now under consideration were raised. I cannot doubt, however, that it escaped the observation of that intelligent judge. He says, “ as I understand it, the meaning of this is, that the judge shall require security to be given, but it is left to him to determine upon the sufficiency of that security. If an undertaking executed by one surety is deemed sufficient, the law is satisfied. If more are required, more must be given. So in case of the order for arrest, the judge may not require security at all; but if lie does, he is to determine upon the sufficiency of the securit}^. It may be one or more sureties. The only restriction upon his discretion, if security is required at all, is, that the form of the security shall be by the execution of 'an undertaking by one or more sureties. This, I think, is all that the provisions of the section contemplate. If so, it follows that there was no irregularity in granting the order of arrest upon an undertaking executed by one surety.”

I regard it, therefore, as entirely within the discretion of the judge issuing the order, whether he will accept an undertaking executed by the sureties or a surety only, on the part of the plaintiff; and that the exercise of his discretion cannot now be called in question.

I have not overlooked the case of Richardson v. Craig, (1 Duer, 666), where Duer, Justice, in the Superior Court, refused to grant an order of arrest, upon the ground that the undertaking on the part of the plaintiff was executed only by the surety and not by the plaintiff, he held that in all cases under section 182 of the Code, the undertaking must be signed by the plaintiff, and that the Code admitted of no other interpretation, he did incline to the opinion that when the plaintiff was a married woman, or an infant, the same might be signed by the next friend or guardian, and that this would be a signing by the plaintiff. I have reflected much upon this case and cannot reconcile it with the language of the Code. My high respect for the eminent jurist who gave this opinion, and for those who concurred in it, has led me to doubt the correctness of my own conclusions. But they are so clear to my own mind, and are sustained, as I believe, by the authorities in this court and the practice in it, that I cannot hesitate to follow the latter.

But if this objection to the undertaking was well founded, I have no doubt that under the provision of the Revised Statutes, (2 Rev. Stats., 787 ; §§ 33, 34), I have the power to permit the undertaking to be amended by having the same executed by the plaintiff, and that under section 173 of the Code it would be my duty to do so, if I thought the undertaking defective.

Beach v. South worth (6 Barb., 173), is authority for this. By section 341 (formerly 290) of the Code it is enacted that an undertaking upon an appeal shall be of no effect, unless it be approved, in the first instance, by a judge of the court below, &c. The undertaking on the appeal in that case had not received such approval. In that respect that appeal was imperfect, if security is required, for the undertaking, without such approval, could be of no effect. Edwards, Justice, in delivering the opinion of the court, held that these sections of the Eevised Statutes were applicable to undertakings under the Code, and that it was competent for the court to amend the same in any respect, and that thereupon it should be deemed valid from the time of its execution, and that the case came within section 34 of the Eevised Statutes, and might be amended in this respect.

The motion to discharge the defendant is therefore denied, but without costs. .  