
    United States Land & Investment Co. v. Bussey.
    
      (Supreme Court, General Term, First Department.
    
    July 9, 1889.)
    Replevin—Bond—Additional Undebtaking.
    Code Civil Proe. N. Y. c. 14, tit. 2, provides for a proceeding to recover chattels by delivery of an affidavit to the sheriff, setting forth plaintiff’s title, etc., and the actual value of the property. By section 1699 plaintiff is required to execute a bond, with sureties to be approved by the sheriff; and by section 1700 the sheriff is then required to forthwith replevy the property by taking possession, and delivering a copy of the affidavit and undertaking to defendant. If defendant excepts to the sureties, section 1705 provides for their justification before the court. Held, that the court has no power to require an additional undertaking, on the ground that the value of the property stated in the affidavit is too small, and an order directing a reference to ascertain the true value of the property is erroneous.
    Appeal from special term, Hew York county.
    Action by the United States Laud & Investment Company against William G. Bussey to recover possession of 469 bonds. Plaintiff appeals from an order of reference to ascertain the real value of the bonds. Code Civil Proc. H. Y. e. 14, tit, 2, provides for a proceeding to recover chattels by delivery of an affidavit to the sheriff, setting forth plaintiff’s title, etc., and the actual value, and executing a bond, with sureties to be approved by the sheriff. By section 1700 the sheriff is then required to forthwith replevy the property by taking possession, and delivering a copy of the affidavit and undertaking to the defendant. Section 1705 provides for the justification of the sureties by the court, if the defendant excepts to them. All the proceedings, except upon justification of sureties and the trial of the action, are before and by the sheriff, without any intervention of the court.
    Argued before Van Brunt, P. J., and Brady and Barrett, JJ.
    
      Walter 8. Cowles, for appellant. Wm. G. Bussey, in pro. per.
    
   Barrett J.

The question presented by this appeal is one of power. The plaintiff, in its replevin affidavit, stated the actual value of the property claimed, and gave an undertaking appropriate thereto. The defendant insists^ that the value thus stated is less than the true value. He excepted, however,' to the plaintiff’s sureties, but, before justification, he moved to require of the plaintiff a larger undertaking. The court thereupon ordered a reference to ascertain the real value, and the plaintiff appeals from the order. If the court had no [lower to require an additional undertaking, the reference was, of course, superfluous, and the order should be reversed. We think the plaintiff is right in its contention, and that the court without further inquiry should have denied the motion for want of power. The court’s authority on this appeal must be looked for in the statute, and it is not to be found there. The replevin system is a minute and complicated one. It cannot be altered or broken in upon to meet the hardship of a particular case. If there has been a casus omissus, which may lead to oppression, it is for the legislature to remedy the mischief. When a plaintiff deliberately minimizes the value of the property claimed, he runs the risk of a rebonding at the same value. That would seem to be the sole check upon undervaluation provided by the statute. That check is amply sufficient, where the defendant is able to rebond. If he be unable to rebond, there is no other way of securing him. He must then rely upon the plaintiff’s personal responsibility, in addition to the undertaking given. The authority of the court is distinctly specified. Under section 1705 it is limited to the provisions regulating the justification of bail. Thus the court may, upon the replevin justification, permit the substitution of new sureties or of a new and amended undertaking. But it cannot try, in this preliminary way, the question of value, and direct the plaintiff to give an undertaking appropriate to the conclusion arrived at on thaj; head. The exercise of such a power would practically destroy the entire system so elaborately constructed by the Code, and would substitute discretion and equity for the strict legal rights contemplated by the scheme. Courts have exercised power of the general character contended for only where the granting or withholding of a provisional remedy was within the judicial discretion. A judge may grant an attachment upon an undertaking in $250, and the court may vacate it, unless the plaintiff increase the security. So, also, with an injunction or order of arrest. The replevin writ, however, is not discretionary. It is not even ordered by the court or by a judge. The plaintiff’s requisition is deemed the mandate of the court, (section 1694,) but the court has no control over its issuance, nor over the subsequent proceedings, except to vacate for irregularities, and, in general, to see that the statutory provisions are duly executed. In De Reguie v. Lewis, 3 Rob. (N. Y.) 708, it was said, in considering similar provisions of the old Code, that a party was not entitled “to have any other than the undertaking approved by the sheriff, however inadequate the amount for which it is given.” The same strict view was taken with regard to another branch of the statute in Manley v. Patterson, 3 Code Rep. 89. Edmonds, J., observed that after the property has been delivered to the plaintiff he could discover no power in the court to order it redelivered to the defendant, except on final judgment, nor any mode in which an order for its redelivery, prior to judgment, could be enforced; so that it would seem that when the property has been delivered to the plaintiff, even when his sureties are utterly worthless, the statute had provided no remedy, except the sheriff’s responsibility, for the plaintiff’s omission to justify his sureties. This difficulty seems to have been obviated by the present Code, (section 1706.) In Knehue v. Williams, 1 Duer, 597, Duer, J., denied a motion to set aside the proceedings made upon the ground that the plaintiffs, in the affidavits whicli^ they were required to make to obtain a delivery, had sworn that the document (which was the subject of the writ) had a certain value. “I apprehend,” he said, “ that I have no right now to say that this allegation is erroneous or false.” In Nosser v. Corwin, 36 How. Pr. 543, Brady, J., remarked that “the remedy which is accomplished is perfect without any allowance either by the court or judge or sheriff, depending only upon the condition that sureties be given in conformity to the statute.” See, also, Hofheimer v. Campbell, 59 N. Y. 269, and Cullen v. Miller, 5 Abb. N. C. 282. The analogies from the rules with regard to security for costs, stays of proceedings on appeal, and similar subjects favor the view which we entertain as to this limitation of power. It was not until special provision was made by statute that the courts felt authorized to require a new undertaking on appeal, even when the original sureties had become insolvent. Willett v. Stringer, 15 How. Pr. 310. So, also, as to security for costs. Quarry Co. v. Pendleton, 4 Abb. Pr. 460, opinions of Brady, J., at special term, and of Ingraham, J., at general term. And in the late case of Republic of Honduras v. Soto, 19 N. E. Rep. 845, the court of appeals held that while under the present Code the court may require an additional undertaking, when the original undertaking in $250 is insufficient, yet where there is a deposit of $250, instead of an undertaking, the plaintiff cannot, under any circumstances, be required to make a further deposit. This is simply because the power is specified in the one case, and not in the other. The court (Ruger, C. J.) quoted from People v. Woodruff, 32 N. Y. 364: “It is wiser and safer to leave the legislative department to supply a supposed or actual casus omissus than attempt to do it by judicial construction.” The order should therefore be reversed, with the usual costs and disbursements, and the motion denied, with costs. All concur.  