
    COURT OF APPEALS.
    Francis R. Lewis, respondent, agt. J. L. Stevens, appellant.
    Baü— Allowance of, made upon regular notice—When will not■ he set aside.
    
    The court cannot set aside an allowance of bail made upon regular notice, on account of excusable neglect of plaintiff’s attorney to attend at the justification.
    When a sheriff has once been legally discharged from his liability as bail, he cannot be reinstated therein (Reversing 8.0.,í% N.T. Superior B. ,559).
    Decided, June, 1883.
    
      Defendant had been arrested by the sheriff of the city and county of New York, and had given bail. Plaintiff served notice that he did not accept the bail, and notice of justification was given. On the day when the bail were to justify, plaintiff’s attorney, who had been absent from the city, was delayed upon his return, and his clerks neglected to attend to the matter. The bail were allowed upon plaintiff’s default and the bail piece approved and filed. Plaintiff’s attorney moved to vacate the allowance of the bail. The motion was denied by the special term, but this order was reversed by the general term, from which last order defendant and the sheriff appealed*
    
      Henry D. HotcTciss, for plaintiff.
    
      A. J. Dittenhoeffer, for defendant.
    
      Malcolm, Graham, for sheriff.
   Ruger, C. J.

This is an appeal from an order of the general term reversing an order of the special term, denying a motion to open a default taken upon a hearing for the justification of bail upon an arrest in the action. The defendant and sheriff each had notice of the motion; each appeared in opposition thereto, and each appeals from the decision of the general term.

It is provided by section 580 of the Code of Civil Procedure, 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 touching his sufficiency. It is further provided that the judge may adjourn the examination from day to day in his discretion until it is completed, but such adjournment is required to be to the next judicial day, unless by consent another day is agreed upon.

Section 581 provides: “ If the judge finds the bail sufficient, he must annex the examination to the undertaking, indorse his allowance thereon and cause them to be filed with the clerk.” The sheriff is thereupon exonerated from liability.

The allowance of bail by the judge in this case was made upon regular notice, and all of the proceedings relating thereto were regularly taken in conformity with the Code. The contingency had occurred upon which the statute declares the sheriff discharged from liability. We do not think that any power exists in the court to renew his liability (Ballard agt. Ballard, 18 N. Y., 491; Butler's Bail, 1 Chitty R., 83; Petendorff on Bail, 318; Trumbull agt. Healy, 21 Wend., 670; Cornell agt. Reynolds, 1 Cow., 241).

The question involved is one of power, and the court have no right to speculate as to the effect of the order. The sheriff has once been legally discharged from his liability, and he cannot be reinstated as a surety except 1 y express statutory authority. We believe that none such exists.

When the court have power to relieve a party from the consequences of a default, it is a question of discretion in the courts below as to whether they will do so or not. The circumstances existing in this case would very well justify the action of the court were this a proper case for the exercise of such power. The sheriff occupies the position of 'a surety, and his rights are strictissimi juris, being once discharged from his liability it cannot be revived against his objection.

We think the order of the general term should be reversed and that of the special term affirmed.

All concur.  