
    The People of the State of New York ex rel. The Keeseville, Ausable Chasm and Lake Champlain Railroad Company, Relator, v. Joseph A. Powers, Archie R. Joy and Thomas O’Connor, Defendants.
    (Supreme Court, Saratoga Special Term,
    August, 1911.)
    Mandamus — Procedure and relief (Code Civ. Pro., §§ 2067-2085)— Stay of proceedings — Stay by proceedings for review — Giving security.
    Undertaking — Necessity and sufficiency of undertaking and curing insufficiency: Formal sufficiency — Joint and several: Sufficiency of securities.
    Section 1328 of the Code of Civil Procedure has no application to a writ of mandamus, and the fixing by a justice of the Supreme Court of the amount of an undertaking to be given upon appeal to the Court of Appeals from an order of the Appellate Division directing a writ of peremptory mandamus to issue commanding the delivery of certain books and papers to the county clerk for inspection by the parties to pending litigation and reversing an order of the Special Term refusing the writ, and the giving of an undertaking in pursuance of such order do not operate as a stay, in the absence of any express provision for a stay in the order fixing the amount of the undertaking.
    Where two undertakings are contained in the same instrument, under the provisions of section 1334 of the Code of Civil Procedure, and the affidavit of the sureties contains no statement that they are residents of the State, and the sureties do not justify in twice the sum specified in the undertaking, and the undertaking as to one of its conditions is not joint and several in form, it is not in substantial compliance with the statute and ineffectual for the purposes for which it is given.
    Motion to punish defendants for contempt for failure to obey writ of mandamus.
    Weeds, Conway & Cotter, for motion.
    Thos. C’Connor, opposed.
   Kellogg, J. A., J.

The relator applied at Special Term for a writ of. peremptory mandamus directing the defendants to deliver certain books and papers of the relator.of which corporation the defendants had previously been officers.

The motion was denied at Special Term but upon appeal-to the Appellate Division the order of the Special Term was reversed and the writ of peremptory mandamus directed to issue requiring the delivery of the books and papers in question to the county clerk of Clinton county for inspection by the parties pending a certain litigation then in course of determination between the relator and these defendants.

The writ of mandamus required the return to be made at this term. The books and papers have not been delivered and the return has not been made.

The defendants, however, after the issuance of the writ appealed, to the Co-urt of Appeals. They procured no order staying the operation of the writ of mandamus but, claiming that section 1328 of the Code of Civil Procedure was applicable to the situation, presented ex parte to Mr. Justice Houghton an affidavit, setting forth the entry of the order of the Appellate Division reversing the order of the Special. Term and directing the issue of a peremptory writ of mandamus.

Hpo'n this application Mr. Justice Houghton fixed the amount of the undertaking at $3,000, but made no express direction as to a- stay. An undertalcing was thereupon executed and filed, approved as to form and sufficiency by the same justice. Proof of these proceedings has been made by the defendants in connection with their preliminary objections and relied upon by them as an excuse for failing to comply with the writ of mandamus.

The fact that a writ of mandamus had been issued was not disclosed by the papers on the application to Justice Houghton.

Prom an examination of the various provisions of the Code bearing upon the subject in ¿ontroversy, I am convinced that the fixing of the amount and the filing of the undertaking did not act as a stay.

Section 1328 has no application to a writ of mandamus.

If the order itself directed the delivery of the property, there might be some force in the argument of defendants’ counsel; but in such a proceeding the order could not so direct and did not so direct, and the condition existing was neither within the language nor the spirit of section 1328. The order merely directed the writ to issue.

It is the writ of mandamus which was issued by the Appellate Division that directed action on the part of defendants which they have failed to comply with, and the operation of such writ can be suspended only in the methods pointed out by the Code.

This is an extraordinary writ and its direction cannot be lightly ignored."

Section 2087 of the Code goes so far as to provide that, where the writ is issued by the Appellate Division upon an original application, it can only be stayed by order of the same Appellate Division. Under this express provision, even a justice of the court has no power to stay the operation of a writ originally applied for in that branch of the court.

It is hardly to be believed that, having provided so stringent a provision as to a writ granted by the court upon original application, the only safeguard which the law intended in cases where the writ was issued after an appeal was to be the filing of an undertaking to pay a sum of money which, in many cases, would be entirely inappropriate.

A more consistent position is to hold that section 2089 is applicable and that its provision, “ where the writ was granted at a term of the Appellate Division an order staying the proceedings or enlarging the time to make a return can be made only by a Justice of the Appellate Division of the same Department ” must be controlling in the case at bar.

The conclusion, therefore, would be that, until a justice of the Appellate Division ordered a stay, no excuse existed on the part of the defendants for ignoring the writ.

Even if section 1328 could in any event be deemed applicable to a writ of mandamus, the case at bar is not within the purview of the section.

This writ directs the defendants to deposit with the Olerk of Clinton County, at his office, all the books of account, records, record books, letter files, letter books, receipted bills or vouchers for moneys paid said Keeseville, Ausable Chasm and Lake Champlain Eailroad Company, •cancelled checks, notes or drafts, and papers of every description belonging to the said Eailroad Company, including all books and papers of said Eailroad Company which came to your control or the control of either of you as officers of said railroad company or otherwise.”

“ Books of account ” and letter books ” are neither “ documents ” nor personal property ” within the ordinary meaning of the word.

But, however this may be, section 1328 clearly refers to a situation where one party is directed to deliver a document or personal property to another, permitting at such a time the party directed to deliver to place the article im dispute in. the custody of the court pending the appeal.

. It has no application to the case at bar, where the parties are directed to deposit the articles with the officer of the court. The act commanded by this writ is the very act permitted by section 1328 in lieu of delivery to the opposing party, and is in no sense such a delivery as that section assumed to stay.

To urge that this section is applicable to the case at bar is to say, when we bear in mind its first alternative, that the act could be stayed by performance of the act itself; that the deposit with the clerk could be stayed by a deposit with the clerk, which reduces the contention to an absurdity.

If any undertaking executed under section 1328 could act automatically as a stay, which I believe it could not, the undertaking presented in the case at bar wholly fails to comply with the statutory requirements in three particulars.

First. There is no statemetit in the affidavit of the sureties that either of them is a resident of this State.

Second. The sureties do not justify in twice the sum specified in the undertaking. The total amount purporting to be secured by the undertaking is $3,500'; the amount of the justification is $6,000.

' Although it is proper under section 1334 to combine the two undertákiiigs in one instrument, the amount of the justi-; fication should clearly be twice the total amount purporting to be secured.

Third. As to that part of the undertaking to secure the $3,000 in question, it is not joint and several in form.

All these requirements of section 812 of the Code of Civil Procedure have been disregarded. The requirements of the statute as to undertakings to stay execution must be strictly complied with. Concordia Savings & Aid Assn. v. Read, 124 N. Y. 189; Bristol v. Graff, 79 App. Div. 426; affd., 179 N. Y. 551.

The approval of the undertaking was not required (Code Civ. Pro., § 1335) and of course cannot do away with the necessity of complying with the express provisions of statute.

Believing, therefore, that the filing of an undertaking under section 1328 could not in any event suspend the operation of this writ, and furthermore confident that, if such an undertaking could work such a suspension, the undertaking in question is not in form required by law for such a purpose, the conclusion necessarily results that the defendants are in contempt of court.

But, inasmuch as they have attempted to comply with the provisions of law which they deemed applicable' and which upon a superficial consideration of the question might be so construed, I feel that no severe penalty should be imposed upon the defendants at present, and that an opportunity should be given to follow the proper practice.

Eo fine will, therefore, be imposed as requested. The defendants should be ordered imprisoned until the compliance with the writ of mandamus, but an opportunity of ten days should be given them to comply with the writ or to move for a stay pending appeal.

The defendants are seeking to deprive the relator of an opportunity to examine its own books; and a stay of the writ which brings about that result should he applied for on notice, so that the relator may have a full opportunity to be heard, not only as to the propriety of granting the stay, hut also as to the terms and conditions which should he imposed in case the stay he granted.

To longer deprive the relator of access to its own hooks and papers might cause great inconvenience and loss, by withholding information and perhaps proof necessary both for the timely presentation and collection of claims due to it, or necessary for successfully disputing and defending unjust claims made against it. It is certainly a question which should not be adjudicated without giving the relator an opportunity to be heard.

An order will, therefore, be signed, finding.the defendants guilty of contempt and ordering their imprisonment until compliance with the writ; warrant of commitment not to issue, however, for ten days from service of the order, that the defendants may have an opportunity either to comply with the writ or serve upon the relator’s attorneys notice of application, returnable not less than five nor more than fifteen days from the service thereof, to a justice of the Appellate Division of this department for a stay pending the appeal. .

The relator should also have ten dollars for the motion.

Ordered accordingly.  