
    JACOB K. HETSCH, Appellant v. T. BRIGHAM BISHOP, Respondent.
    
      Order of arrest, exception to the sufficiency of hail and proceedings thereon.
    
    
      Held, that this order cannot be sustained. The plaintiff had not waived his right to the examination of the sureties, but had proceeded regularly to enforce it.
    Before Freedman and Gildersleeve, JJ.
    
      Decided December 5, 1892.
    Appeal from an order denying plaintiff’s motion to compel the sheriff of New York to accept a notice of exception to the sufficiency of bail given by defendant, and providing further that if the plaintiff decline to permit the approval of the sureties to stand, that the order of arrest should be considered vacated.
    
      Myer J. Stein, for plaintiff-appellant, argued:—
    I. Plaintiff either was or was not absolutely entitled to the justification of the sureties. There was no question of discretion involved. It has always been supposed hitherto, that when a defendant gave bail in the sheriff’s office, and the sheriff caused a copy of the bail-bond to be served on the plaintiff’s attorney, and such attorney served a notice of exception within the statutory time, that under such circumstances, he had the absolute right to have the sureties justify in open court and to have the question submitted to the court, as to their sufficiency, and be heard as to the sufficiency of the form of the undertaking. Code, §§ 573, 581. The notice of exception served on the sheriff in this case was not only to the sufficiency of the sureties but to the form of the undertaking. The sheriff’s counsel recognized the right of plaintiff to except to the sureties and to the j ustification by serving the undertaking. If he intended to rest upon the ex parte approval of the undertaking by the judge he should not have served copy of the bail-bond. Having done this, he is estopped now from claiming that the plaintiff had no right to except to the sufficiency of the sureties and to the form of undertaking. This undertaking was served by the sheriff’s attorney upon plaintiff’s attorney on June 1, 1892. On that day a notice of exception was duly served, and on the same day it Avas returned, because it had already been approved by the court. This was taking the position that the matter was at an end, and that the plaintiff had no rights in the premises. The plaintiff either had the absolute right to except to these sureties and have his notice of exception stand and have them justify in open court under the provisions of the Code, which we have cited, or he had no rights whatever. Section 572 of the Code provides that it is not necessary that the undertaking should he approved or accompanied by an affidaAÚt of justification of the bail, but that the officer taking the acknowledgment of the undertaking must, if the sheriff so requires, examine under oath, to a reasonable extent, the bail, concerning their property and circumstances, and if this is done, that it must be reduced in writing, subscribed by them, and annexed to the undertaking. This is largely formal and was done in the present case by the commissioner of deeds connected with the sheriff’s office. Section 577 provides that within three days after the hail is given, the sheriff must deliver to the plaintiff’s attorney copies certified by liim of the order of arrest, warrant and undertaking, and that such attorney, within ten days thereafter, must serve upon the sheriff a notice that he does not accept the bail, or he shall be deemed to have accepted them, and. the sheriff is exonerated from liability. Section 578 provides that within ten days after the receipt of the notice, the sheriff or the defendant may serve upon plaintiff’s attorney notice of justification of the bail or other bail, specifying places of residence and occupation of each of the latter, before a judge of the court, or a county judge, at a specified time and place. Section 579 provides that the bail must be residents of and householders or freeholders within the state. Section 580 provides that for the purpose of justification, each of the bail must attend before the judge at the time and place mentioned in the notice and be examined on oath on the part of the plaintiff touching his sufficiency, in such manner as the judge in his discretion thinks proper, and that the judge may adjourn the examination from day to day, and if required by the plaintiff’s attorney, the examination must be reduced to writing and subscribed by the bail. Section 581 provides that if the judge finds the bail sufficient, he must annex the examination to the undertaking, endorse his allowance thereon, and cause the same to be filed with the clerk, and that the sheriff is thereupon exonerated from liability. It would seem that these provisions are too plain to admit of any cavil, and provide that if an exception to bail is duly served by the plaintiff, he has the right to have the parties appear in court and to examine them, and if they are found sufficient, then and not till then can they be approved by the court, and then and not till then is the sheriff released from liability, as bail. In this case, it is not claimed that the plaintiff made any waiver of his rights. In fact, as soon as the bail bond was served upon him, he took prompt action, excepted to the sufficiency of the sureties and to the form of the undertaking, and as soon as this notice was returned, he promptly made his application to the court. There is no provision in the Code which we have been able to find, which permits a judge to take away the right of the plaintiff to examine bail. Of course, we can all conceive of a situation where the plaintiff might come before the court asking a favor of some kind and the court could then order that as a condition of granting the relief, the plaintiff should waive his right to examine the sureties, but there is nothing of that kind in this case. That the right of arrest and to hold to bail is a substantial one, is beyond question. The taking away of this, affects a substantial right of a litigant. Levy v. Salomon., 105 N. Y., 520, 533.
    II. If the application rested in the discretion of the court, it is then respectfully submitted that this is a case where the discretion should have been- exercised in favor of the plaintiff. The action was one in which his Honor, Judge McAdam, granted the order of arrest, and after an examination of facts, which have never been disputed, held that it was a proper case for arrest, and fixed the bail at the sum of three thousand ($3,000) dollars. The papers presented show that it is an aggravated case. The defendant fled the jurisdiction when under arrest in the City Court action, gave fraudulent bail, which was rejected by the court, and when execution was issued against his person he was not to be found. That action, which was one of conversion, resulted in a judgment against him, which has not been paid. Shortly after, when he was finally surrendered by one of his bail, he turned around and from motives which are perfectly plain, swore out a warrant for the arrest of the plaintiff in this action for perjury and dragged him through a lengthy examination before a police judge and obtained the matter to be widely advertised in newspapers. The defendant, when arrested in this action, claimed that he was unable to give bail in the sum fixed by the judge and the same was reduced to one thousand dollars. He was allowed to go in the custody of his counsel, and then refused to surrender to the sheriff, and only did so after a motion had been made to punish his attorney for contempt. He then gave an undertaking with two sureties (relatives) upon the same, who pretended to be residents of the city of New York. It appeared, however, that they were then actually living in New Jersey. Whether they were bona fide residents of New York might be a question open to discussion. At least, that was one of the questions which the plaintiff believed he had the right to inquire into and discuss before the court. One of the pieces of property given by the defendant’s wife was mortgaged. Its value was problematical. The balance of the security given by her was personal property, which is always of a very illusive nature when an attempt is made after litigation to realize. The other surety, a son of defendant, pretended that he was a resident of the city of New York, although actually living in New Jersey at the time, and he gave some suburban property in Brooklyn as security, and also illusive personal property. These persons living in New Jersey would no doubt have been very difficult to find, if an attempt was ever made to subject them to a liability as bail. Under these circumstances, and knowing the defendant’s record, that he had fled the jurisdiction, and finally, was surrendered by one of his bail, it was perfectly natural that the plaintiff’s attorney should desire to examine the bail, in this action, and it would seem that under the state of facts disclosed, that if it were a matter resting in the wise judicial discretion of the judge, that he should have permitted such examination. We all know that a formal affidavit of justification, made without the opportunity for cross-examination by the adverse party, amounts to little. The affidavits of the sureties, taken in the sheriff’s office, were so made. The learned judge, in approving the same, probably did so, as a matter of form, and possibly may have understood at the time that they were satisfactory to the plaintiff, although no stipulation or proof was presented to him to that effect. It would seem, at least, that on his attention being called to the facts to which wre have referred, that he should have been only too glad to have given the plaintiff an opportunity to examine the sureties in open court and test their responsibility. The motion before the court was to compel the sheriff to accept service of the notice of exception, and vacate the ex parte approval of the bail. It is respectfully submitted that the court should have been content with either denying or granting the motion and should have stopped there.
    III. In any event, that portion of the order which goes beyond a denial of the motion should he stricken out. It is respectfully submitted that the portion of the order in this language should be stricken out and the order modified accordingly. “ If the plaintiff declines to permit the approval of the sureties to stand, the order of arrest granted by Mr. Justice McAdam may he considered vacated.”
    
      William E. Stillings, for the sheriff, in opposition, argued:—
    I. Whilst the Code gives the plaintiff a right to an examination of the sureties on a bond or undertaking, the court undoubtedly has a right to control its mandates and any proceeding which grows out of the issuing thereof, and if the court exercises that right by approving a bond or undertaking, plaintiff must accept such approval, whether it is satisfactory to him or not. If the sureties had attended before a justice of this court pursuant to a notice to appear and justify, and their examination had been taken and their testimony did not disclose sufficient property owned by them to qualify as sureties, as provided by the Code, and the justice before whom such justification was had should deem them suffieientand approve the bond or undertaking, such approval would be final. The Code, section 580, reads as follows : “ For the purpose of justification, each of the bail must attend before the judge at the time and place mentioned in the notice, and be examined on oath on the part of the plaintiff, touching his sufficiency in such manner as the judge in his discretion thinks proper. If required by the plaintiff’s attorney, the examination must be reduced to writing and subscribed by the bail.” Section 582 says, if the judge finds the bail sufficient, he must annex the examination to the undertaking, endorse his allowance thereon and cause them to be filed with the clerk. It is clearly left to the discretion of the judge to decide whether the bail is sufficient. A justice has an undoubted right to vacate an order of arrest upon any grounds, and certainly as in this case, the judge Avho grants the order of arrest can vacate it. All that is necessary is that the justice shall deem it proper to do so. That being so, it follows that the justice who issued the order of arrest in this case may vacate it or impose as a condition for not vacating it any stipulations or requirements he wishes. In this case the learned judge imposed as a condition for not vacating the order of arrest that the plaintiff or his attorney shall not insist upon an examination of the sureties.
    II. The justice who issued the order of arrest having-power to vacate it and having by his decision ordered that the order of arrest be vacated unless the approval of the sureties is allowed to stand, and the plaintiff by his appeal herein having manifested his choice not to let said approval stand, the only result of this appeal, even if this court should hold that plaintiff Avas entitled to an examination of the sureties, would be an affirmance of that part of the order which vacated the order of arrest.
    HI. But if the learned justice erred in approving the bond before plaintiff had examined the sureties, the sheriff should not be prejudiced thereby. The court should protect its executive officers in carrying out its mandates. After a justice of this court had approved the bond, the sheriff had no alternative but to allow the defendant to go from his custody. And by the order appealed from, the learned justice has clearly manifested that it was right and proper, in his opinion, that the bond should be approved and so stand. If the court should now reverse the order of Mr. Justice MoAdam and decide that defendant’s sureties must submit to an examination, it would in effect decide that the bond should never have been approved before plaintiff had examined said sureties, and that the defendant should not have been allowed to go from the custody of the sheriff until the bond had been approved after an examination. But if the sheriff should not be able to retake the defendant and the sureties on the bond should prove worthless, perhaps having become so since said approval, the sheriff might be mulcted in damages to the amount of the bond. It would be unjust and inequitable that an executive officer should be made to suffer for doing his duty, and even if the court should take the view that plaintiff has been deprived of some right, it should not seek to give him relief at the expense of a public officer who has simply discharged his duty.
   By the Court.—Freedman, J.

The material facts to be considered on this appeal are as follows :—

The action is for malicious prosecution. On the 26th óf May, 1892, the defendant was in the custody of the sheriff under and in pursuance of an order of arrest theretofore granted in the action which requires the sheriff to hold him unless he gave bail in the sum of f1,000. On the day named the defendant did give such bail to the sheriff. The undertaking delivered for that purpose was executed by the wife and the son of the defendant, as sureties, who therein claimed that they were permanent residents of the city of New York, although they then temporarily resided at Clifton, N. J. Each of the sureties made an affidavit of justification before a commissioner of deeds in the office of the sheriff. The sheriff thereupon released the defendant from custody. On May 26, 1892, the undertaking was approved ex parte by a judge of this court. On June 1 the sheriff served a copy of the undertaking upon the attorney for the plaintiff, and upon the same day the said attorney duly served upon the sheriff and upon defendant’s attorney notice of exception to the sufficiency of the undertaking and of the sureties. This notice was returned by the sheriff to plaintiff’s attorney, with a notice to the effect that the return of the notice of exception was for the reason that the undertaking, and the sureties thereon, had been approved by a judge of this court before the receipt of the notice of exception. Thereupon the plaintiff’s attorney, upon an affidavit showing the facts, and alleging that he had not examined the sureties or consented to the approval of the undertaking, that he believed the sureties to be insufficient, and that the defendant would probably escape, and insisting upon his right to examine the sureties, moved that the sheriff be compelled to receive the notice of exception and that the ex parte approval of the undertaking be canceled. After a hearing this motion was denied and an order entered denying the same and providing further, that if the plaintiff should decline to permit the approval of the sureties to stand, the order of arrest might be considered vacated. From this order the plaintiff appealed.

This order cannot be sustained. The plaintiff had not waived his right to the examination of the sureties and had proceeded regularly to enforce it. The ex parte approval of the undertaking was not necessary under section 576 of the Code of Civil Procedure, and as it was without any notice to the plaintiff or his attorney, it was, to say the least, merely formal and did not bind the plaintiff. Under section 577 the sheriff was bound to serve a certified copy of the undertaking upon plaintiff’s attorney, and the latter had ten days thereafter to serve notice that he did not accept the bail. Such notice having been duly and immediately given, it became the duty of the sheriff or the defendant, under section 578, to serve notice of justification before a judge of the court, and under section 580 the sureties should have attended pursuant to such notice for the purpose of justification and submitted to an examination by plaintiff’s attorney touching their sufficiency. The manner of the examination is in the discretion of the judge, but, if required by the plaintiff’s attorney, the examination must be reduced to writing and subscribed by the bail. It is only upon the conclusion of such an examination that the contested sufficiency of the bail is to be finally determined, and if then the judge finds the bail sufficient, he must, under section 581, annex the examination to the undertaking, indorse his allowance thereon, and cause them to be filed with the clerk, and thereupon, and not before, the sheriff is exonerated from liability. The language of the section last referred to is too plain to admit of dispute.

For the reasons stated the order appealed from should be reversed, with ten dollars costs and disbursements, and the motion granted.

Gildersleeve, J., concurred.  