
    COURT OF APPEALS.
    Nichols, administratrix &c., respondent agt. MacLean, appellant.
    
      Appeal — Undertaking—Incorporated guaranty company not alone sufficient to execute undertaking on appeal—Code of Civil Procedure, secs. 1334, 1335.
    An undertaking on appeal to the court of appeals must he executed by at least two sureties ; the appellant cannot himself be one of the sureties, nor can the approval by a judge of a guaranty company under chapter 486, Laws of 1881, take the place of the two sureties. This reverses the judgment of the general term, rendered in Hurl agt. Hannibal and St. Joseph B. B. Co. (67 How., 516).
    An undertaking executed only by the appellant and the Fidelity and Casualty Company, with no other surety, is insufficient.
    An appellant is only required to file the return and serve the printed cases. The respondent, if he wishes to expedite the case, can himself put it upon the calendar and notice it for argument.
    
      Decided, January 27, 1885.
    This was a motion to dismiss an appeal on the. ground of dhe insufficiency of the undertaking filed, and also for want of prosecution. The undertaking was executed only by the .appellant and an indemnity company, with no other sureties.
    
      John D. Townsend, for motion.
    
      Edward W. Crittenden, opposed.
   Rapallo, J.

he Code of Civil Procedure, section 1334, (requires that an undertaking on appeal to this court be executed by at least two sureties. The appellant cannot himself ¡sign as a surety (Morse agt. Hasbroucle, 10 Abb. JST. C., 407).

The act of 1881 {chap. 486) does not repeal section 1334 of -the Code, and is not inconsistent with it. That act applies -only to bonds or undertakings which are to be accepted or approved by a head of department, surrogate, judge, sheriff, district attorney or other officer, and it merely authorizes any officer who is required to approve any such bond or undertaking to accept and approve the same in his discretion when its conditions are guaranteed by a duly incorporated guaranty company.

The undertaking on appeal in this case is not one whose sufficiency is made to depend upon the approval of any judge or officer. On the contrary, it does not even require approval {Code, see. 1335), and the approval of a judge cannot be substituted for the two sureties required by law. If it could then the act of 1881 would be applicable and would authorize the judge to give the approval; but there is no law which declares either the approval of a judge or the guaranty by a corporation equi valent to two sureties. We therefore conclude that the undertaking before us being executed only by the appellant and the Fidelity and Casualty Company, with no other surety, is insufficient.

The second ground upon which the motion to dismiss is founded (viz., want of prosecution) is untenable. The appellant is bound only to file the return and serve the printed cases. The respondent, if he wishes to expedite the case, can himself put it upon the calendar and give notice of argument.

The motion to dismiss the appeal should be granted, unless within thirty days the appellant files a proper undertaking and pays the costs of this motion.

All concur.  