
    Keck v. Gross et al.
    (City Court of Brooklyn—General Term,
    January, 1894.)
    A failure to have an undertaking for an order of arrest approved by tkejudge will not relieve the sureties of responsibility thereon.
    A party arrested upon an order of arrest can resort, in the first instance, to an action on the undertaking without pursuing his remedy against the party procuring the arrest. '
    The complaint in an action on an undertaking alleged that In an action brought against the plaintiff, an order of arrest was granted upon an application and undertaking,' upon which the plaintiff was arrested; that thereafter such proceedings were had that an order was made, oi which a copy was annexed; that thereafter defendants executed and filed the undertaking in suit, pursuant to section 559 of the Code, and that plaintiff recovered judgment in said action for costs, payment of which had been demanded and refused. The order mentioned recited-that the sureties in the first undertaking failed to justify, and ordered that the order of arrest be vacated unless a new undertaking was given. Held, that the complaint sufficiently set forth that the undertaking was-duly given in pursuance of section 559 of the Code,
    Appeal from order overruling defendants’ demurrer and; ordering judgment for the plaintiff thereon.
    Action upon an undertaking executed by defendants in an action brought by one Johann Carl Kutt, as executor, against this plaintiff, in which an order of arrest was granted.
    The complaint alleged the bringing of said action, and the-execution of an undertaking by other persons pursuant to section 559 of the Code; that an order of arrest was granted upon said undertaking, upon which this plaintiff was arrested and thereafter detained; that thereafter such proceedings were had. that an order was made, of which a copy was annexed to tliecomplaint; that thereupon these defendants executed and filed with the clerk of the court, pursuant to section 559 of the Cede- and of said order, a written undertaking, a copy of which was-annexed and made a part of the complaint; that this plaintiff recovered judgment in said action for his costs and expenses; that no action had been commenced upon the undertaking first mentioned; that it had been rendered of no force and effect by the order, and that no part of the judgment for costs had been paid. The order annexed to the complaint recited that the sureties on the first undertaking were excepted to and failed to appear or'justify, and ordered that the order of arrest be vacated unless the plaintiff therein gave a new undertaking according to law.
    
      Max Hallheimer, for plaintiff (respondent).
    
      M. L. Towns, for defendants (appellants).
   Van Wyck, J.

This is an action on an undertaking given, in pursuance of sections 559 and 730 of the Code of Civil Procedure, on an order of arrest granted against this plaintiff in another action in which there was a judgment in favor of this plaintiff (the defendant therein) for costs. The defendants herein demurred on the ground that the complaint did not state facts sufficient to constitute a cause of action. An order was granted giving plaintiff judgment on the demurrer as frivolous, in pursuance of section 537 of the Code of Civil Procedure. This is an appeal from that order.

We think the complaint sufficiently sets forth that the undertakirig was duly given in pursuance of section 559 of the Code of Civil Procedure on the order of arrest. . The failure of the plaintiff in the action in which the order of arrest was granted to have the undertaking marked approved by the judge will not relieve the sureties of responsibility thereon. Gopsill v. Decker, 4 Hun, 625 ; Candee v. Wilcox, 14 Wkly. Dig. 245. The party so arrested can resort, in the first instance, to the action on the undertaking, without pursuing-his remedy against the party procuring the arrest. Wilson v. Field, 14 Wkly. Dig. 378.

Order appealed from must be affirmed, with cost’s and disbursements to be taxed by the clerk.

Clement, Ch. J., concurs.

Order affirmed, with costs and disbursements.  