
    THE STAR FIRE INSURANCE COMPANY, Plaintiff and Appellant, v. HENRY H. GODET and Others, Defendants and Respondents.
    I. Order, Entry of.—What Re-opens.
    1. A peremptory direction by the judge who made it, to appear before him for a re-settlement.
    2. Until the entry of another order upon the judge’s decision on the application for a re-settlement, there is no order remaining in force or effect.
    1. This, although the judge, in deciding the application for a re-settlement, refuses to disturb the order first entered,
    
    3. Appeal from order in such cases.—Time for.
    
    1. Consequently the time to appeal does not begin to run until the entry of an order on the application for a resettlement, embodying the provisions of the one re-Qpened and service of notice thereof.
    II. Motion tjnnecessaby.
    1. May be denied for that cause only.
    
      a. Therefore a motion to vacate a re-opened order, and to have the same re-entered as of the date of the re-entry, -will be denied. .
    Before Barbour, Ch. J., Monell, and Freedman, JJ.
    
      Decided May 4, 1872.
    This action was brought upon an undertaking, given under section 187 of the Code, in an action wherein the plaintiff herein was plaintiff, and Henry H. Grodet principal, was defendant, and executed by Henry H. Grodet, as and Henry T. Grodet and C. N. Van Zandt, sureties.
    The complaint herein alleges that a judgment had been recovered against the defendant in that action, and an execution against his person had been issued, and that .he had not rendered himself amenable thereto. Before an answer was put in, the sureties surrendered their principal to the sheriff, and gave notice to the plaintiffs’ attorney that they would apply to the court, at special term, to exonerate such sureties from all further liability upon the undertaking; and that motion was heard on May 10,1871, the counsel for the plaintiffs and defendants, respectively, being present, and arguing the same—the plaintiffs’ counsel claiming that the motion ought not to be granted, or, if allowed, that it should be only upon payment by the defendants of the costs of the action. On the same day an order was entered by direction of the court, without notice of settlement, granting the motion without conditions. On May 15, the same judge gave to the plaintiffs’ attorney a chamber order directing the attorneys for the defendants to “appear before him, at chambers, on the 17th, for the purpose of resettling the order granted in exoneration of the defendants’ liability on the undertaking prosecuted in this action and on the latter day that matter was argued, the judge reserving his decision. Mo decision was announced, however, until August 33, when the papers were returned by the judge, with his endorsement thereon, stating that he could not disturb the order already entered. The plaintiffs’ attorney thereupon requested the judge to permit an order to be entered in accordance with that decision, which request was refused. On September 11, the plaintiffs, upon papers showing the foregoing facts, and an affidavit of the plaintiffs’ attorney, stating, among other things, that he “ deemed the order to exonerate the bail so subversive of the rights and interests of the plaintiffs that unless it was radically modified on a resettlement, he intended to appeal therefrom, and that the time for appealing expired while the question of resettlement remained undecided,” moved at special term, before another judge, that the order entered on May 10 be vacated, and that the same be re-entered as of the date of such re-entry. He also moved, at the same time, and on the same papers, for an order directing that the answer (which set forth, among other things, the surrender of the judgment debtor and the order exonerating his sureties,) be set aside. Both motions were denied, and the plaintiffs appealed from the order thereupon entered.
    
      George N. Rathbun and H. Z. Hayner, of counsel for appellant, argued:
    I. The order appealed from involves the merits of the action, and affects a substantial right. It is therefore appealable (Code, § 349). 1. The defendant’s answer, if the order exonerating the bail be allowed to stand, in legal effect, turns the plaintiff out of court mulcted with the costs of an action commenced in good faith on a good cause of action after failure of the bail to comply with the undertaking —no very great encouragement to pursue a remedy against bail expressly given by section 190 of the Code. 2. The validity of the surrender is involved, which is vital to the defense set up. Nor does it affect the right of appeal from the special to the general term, that the subject matter of the order involves a question of discretion. Section 349 of the Code, regulating such appeals, differs in that respect from section 11, regulating appeals from the general term to the court of appeals. In the former, suitors are entitled to the discretion of the whole court, not alone to that of the special term (Matter of Duff (in court of appeals), 10 Abb. Pr., N. S., 416 ; People v. N. Y. Cent. R. R. Co., 29 N. Y., 418).
    II. The original order of exoneration was erroneous, and should not have been granted in the form in which it was entered. It violates long and, well-established rules of practice, and works great injustice to the plaintiff. It presents the first instance on record in this State, when a plaintiff in an action commenced against bail, strictly in pursuance of a statute, making that his only remedy (Code, § 190), is brought to a stand by an order exonerating the bail from all liability on their undertaking, without making any provision for the costs of the action, or for its discontinuance.
    III. The motion to set aside the answer of defendants, and to vacate the order exonerating the bail, and for re-entering the order on the determination of the resettlement was improperly denied at special term. 1. Because the time to appeal from the order of exoneration expired while the judge held its re-settlement under advisement, and it was the judge’s action or non-action, not any laches or fault of plaintiff, that deprived the plaintiff of a strict right, viz : the right of appeal. See Hubbard v. Copcutt (in court of appeals), 9 Abb. Pr. N. S. 289. 2. It was the only mode of compelling the entry of an order from which the plaintiff could appeal, and thus bring up in review the legality of the order complained of. lb. »
    IY. The order for resettlement in legal effect opened, vacated and annulled the order exonerating the bail, so that until the order on the judge’s determination of the resettlement be entered, the bail is not exonerated.
    Y. The judge’s memorandum on the papers before him on resettlement “ that he could not disturb the order entered at first on motion of Mr. Ely,” cannot have the effect of restoring the order, for he had already disturbed it by ordering its resettlement, and it was thereby in legal effect opened, vacated and annulled.
    YI. The defendants had no right to set up in their answer an order in bar of the action which was either opened, vacated or annulled. 1. The answer was false, as there was not in either case such an order in existence. 2. Even if it should be held that the order of exoneration was revived by the determination of the judge, that he could not disturb it, it was not so revived until long after the answer was put in. The order clearly was not in force at the time it was set up in the answer. 3. If the order of exoneration was only suspended until the judge’s determination of the re-settlement he had ordered, it was irregular to use it as a defense in bar while it was so suspended. 4. But it was not suspended only, nor did the judge’s determination of the resettlement revive or restore its validity. It was opened by the order of resettlement, and until an order on that determination be entered the order of exoneration has no force or effect whatever. 5. The only defense set up in the answer is the exoneration of the bail by virtue of the opened order, and if that be void or illegal, or if it was inoperative when used in the answer, the answer is irregular and should be set aside.
    
      VII. The plaintiffs are regular throughout,—the defendants are not, and they are legally subjected to a remedial action, but the remedy is so applied by the special term, that the plaintiff is or will be punished with defeat, and the payment of the costs of the litigation, and the defendants who are in default are (or if the error is not corrected will be), rewarded with a verdict and the recovery of their costs. The general term of this court will most assuredly correct this error and direct the proper order" to be entered.
    VIII. In addition to the points taken in the body of the printed case against the validity of the surrender, we submit that the mode in' which the surrender was effected in this case was wholly illegal and unauthorized. 1. Before failure to comply with the undertaking the mode of proceeding is specifically provided for in section 188 of the Code, and the difficulty with the defendants is that they have proceeded under this provision after failure to comply with the undertaking. 2. After failure to comply with the undertaking the bail may be exonerated by death df the principal and in various other ways, or by his surrender to the sheriff of the county where he was arrested, within twenty days after the commencement of the action against the bail, or within such time as may be granted by the court (Code, § 191). But for the surrender under this provision the Code has not pointed out the mode—and therefore leave must be granted on application to the court for such surrender. 3. The surrender is a proceeding in the action, and the plaintiff is therefore entitled to the usual notice before any steps are taken to effect it. 4. A surrender after the commencement of the action, but within twenty days thereafter is ex gratia (Baker v. Curtis, 10 Abb. Pr. 279), and being so, leave must necessarily be granted.
    IX. The affidavit of H. H. Gfodet, tending to show that he had always rendered himself amenable to the process of the court, cannot be regarded in the case, because: 1. The return of the sheriff, non est, cannot be impeached collaterally—the sheriff’s return must be taken as true (7 Wend. 352 ; 19 Abb. Pr. 282; 17 Wend. 317; 1 Daly, 95). 2. If the return be false the bail have their remedy against the sheriff (McArthur v. Pease, 46 Barb. 423).
    
      Ely & Smith, attorneys, and Moses Ely, of counsel, for respondent, argued:
    I. Whether the original order' should be resettled rested in the discretion of the judge who made it. That it was entered without notice of settlement, could under no circumstances affect its validity. And this particularly as it was not ■a complicated order, and followed the notice of motion.
    ■ II. The judge having refused to change the order as originally entered, it could have been of no moment to plaintiffs that an order should have been entered upon such refusal. Such an order would not have affected a substantial right, and would not have been appealable (Code, § 349).
    III. The same may be said of the order now appealed from, even if the court had power to grant a different order on the motion (which we deny). Whether it wduld grant or deny the motion was discretionary, and its refusal is not subject to review on appeal.
   By the Court.—Freedman, J.

The order of May 15, 1871, requiring defendant’s attorneys to attend before the justice making the same, on May 17, “for the purpose of resettling the order of May 10, granted in exoneration of the defendants’ liability on the undertaking prosecuted in this action,” was not merely an order to show cause, or equivalent to a notice of motion," but an absolute direction to appear for the purposes of a resettlement; and as the questions arising under the same were argued and the judge took the papers and reserved his decision, the order of May 10 became thereby re-opened for farther consideration, and until the rendition and .entry, in the form of another order, of the said judge’s final decision, it stands without force or effect.

The subsequent indorsement made upon the papers by the said judge over his initials, to the effect that he cannot disturb the first order, is not sufficient to restore the latter to life, fío order is complete, so that an appeal can be taken from it, until it is entered and the motion papers are filed (Smith v. Dodd, 3 E. D. Smith, 215).

Even in the case of a formal order it has been held that the written direction of the judge at the foot of the order, “Enter this,” will not suffice for the purpose of appeal, but actual entry must be made (Whitaker v. Desfosse, 7 Bosw. 678).

The order in this case should be reentered in conformity with the decision made by the judge who ordered it to be resettled, and a copy of it served. And as the court never allows a party to be prejudiced by its own delay, the thirty days, within which an appeal may be taken under section 332 of the Code, must be deemed to run from the time of the service of the written notice of such order, after re-entry (Bowman v. Earle, 3 Duer, 691).

If I am correct in these views, it follows that plaintiff’s motion, made at a special term held by another judge, so far as it prayed for the vacation of the order of May 10, and for its re-entry as of the date of such re-entry, was properly denied as an unnecessary application.

Upon the other branch of the case I will point out, although my associates express no opinion upon it, that the Code substantially re-enacted the law in regard to exonerating bail as it stood at the time of the adóption of the Code (2 Rev. St. 380, as amended by chap. 231 of Laws of 1845 ; Levy v. Nicholas, 19 Abb. Pr. 282; S. C., 1 Robt. 614). Under the former practice the bail could, as a matter of right, at any time pending the suit, or before the return of the ca. sa. against their principal, surrender him in their discharge, and could plead the render in any action against them.

The court also, as matter of favor, allowed the bail a further time, after the return of the ca. sa. In such case, if the plaintiff proceeded against the bail by action of debt, the bail had eight entire days in full term, next after the return of the process against them, wherein to render their principal; or where the suit against them was by declaration, eight days after the service of the declaration. And after the expiration of the eight days allowed ex gratia, the bail could, in a proper case, obtain a further extension. Any allowance, however, of further time, after the return of the ca. sa., being mere matter of favor, could not be pleaded, but the bail could have the full effect of it upon the motion. Pleas by bail in bar of the suit brought against them were regulated by the statute, but a render after suit was not permitted to be thus pleaded.

In analogy to that practice which is still in force so far as it is not inconsistent with the provisions of the Code, a surrender by bail of their principal, under section 191 of the Code, within twenty days after the commencement of the action against them, or within such further time as may be granted by the court, cannot be set up as a defense, by way of answer, to defeat plaintiffs’ cause of action, which has fully accrued before the surrender. Whatever relief the bail may be entitled to' by reason of such surrender, whether in the shape of a discontinuance of the action against them upon or without terms, or otherwise, must be applied for and obtained on motion and on notice to the plaintiff (see Hayes v. Berryman, 21 How. 143; Davidson v. Taylor, 12 Wheat. 604). Consequently, the court, at special term, had the power to grant, and perhaps might have granted, provided the application had been regular, that part of plaintiffs’ motion which prayed for the setting aside of the answer alleging, as a defense, the fact of the surrender after the commencement of the action. But the denial of such relief does not constitute error in this case (1), because the .application was not distinctly made on the ground here suggested, and (2) because, although made on the ground of irregularity,^plaintiffs’ notice of motion did not state the irregularity complained of, as required by the rule. Upon an appeal from an order denying a motion to set aside proceedings for irregularity, if the irregularity is not stated in the notice of motion, the appellate court may presume that the motion was denied for such defect in the notice (Lewis v. Graham, 16 Abb. Pr. 126).

For these reasons the order appealed from should be affirmed, with costs.

Monell, J.

I concur in affirming the order on the ground first stated in the foregoing opinion, namely, that the order of May 10 was in fieri by reason of the order of the 15th. Upon the decision of the motion on the last order, it became necessary to re-enter the first order. That not having been done, the last motion was unnecessary. It is still in time to enter such order, when an appeal from it can be taken within the proper time.

Barbour, Ch. J.

(concurring in the result, but dissenting from the grounds on which the court puts it) The motion to set aside the answer must have been founded upon section 152 of the Code, which authorizes the striking out of sham and irrelevant answers. The facts set up in this answer were sufficient, if true, to constitute a defense to the action, and they were fully proven by the papers read upon the motion. The principal debtor had been surrendered to the sheriff, and an order had been made exonerating the sureties ; and that order had not been countermanded or vacated. The pleading, therefore, was neither sham nor irrelevant.

Cases may be supposed, probably, where a party would be held excusable for his omission to take bis appeal from one order in due time,’ because he had obtained an order directing a resettlement, or a re-i argument, and had, at least, reasonable ground for believing that he would then be entitled to an essential modification or change of such original order. If, for I instance, a palpable error had been committed in drawling up and settling the original order in this case, [either in form, or because it was so drawn as to be too [inexact, or to contain more or less than had been [decided by the court, that, probably, would have been [sufficient to entitle the plaintiff to rely upon his motion cor a resettlement, and to excuse his failure to appeal, but, although the order of the judge at chambers required the defendants to show cause why the order of Ike court should not be resettled, and only that, it is pot pretended by the plaintiff’s counsel that such order Ivas irregular in form, or inexact in its terms, or that it liffered in any manner from the decision of the court. |o, too, if the plaintiffs ha$ obtained an order directing the defendants to show cause at a special term of the lourt why the original motion should not be reheard |r re-argued there, and had shown by his papers that pine important question to which the attention of the lourt was directed, had been left undetermined, or that ■une recent decision of importance, not then known to lie court or counsel, had been found, it may be that le pendency of such order to show cause would have Irnished such an excuse for the plaintiffs’ omission to appeal as would have justified the court in directing the original order to be vacated and again re-entered, in order to afford the plaintiffs another opportunity to appeal. But, although the papers before us seem to intimate that the plaintiffs’ counsel supposed he had a right to treat the order to show cause why the order should not fee resettled, in some sort, at least, as an order for a reargument, he ought to have considered, first, that an order of a judge at chambers providing for a resettlement before him of another order of the court, was not an order for a rehearing before the court; and, secondly, that a judge, sitting at chambers and not as a court, had no power to hear or reheai a motion which belonged to the court alone to determine, or to modify or change any order made by tin court and entered of record. The plaintiffs, therefore were wholly without excuse, as I understand it, fo: their failure to appeal from the first order in due time and, for that reason, the court was right in denying their motion to vacate such order and re-enter th same.

The order appealed from should be affirmed, wit costs.  