
    The Mayor, &c. of the City of New York v. Charles V. Lyons and William H. Charlock.
    In an action against a constable’s bond in the city of New York, where it has been adjudged that the answer was frivolous, it is erroneous to "enter up a general judgment for the sum mentioned in.the complaint.
    Judgment should be entered up for the penalty of the bond, and the Court moved for an order, under the act of 1813, directing so much money to be levied upon the judgment as shall be sufficient to satisfy the debt or damages of the party aggrieved.
    In such an action, the summons should be for relief, under subd. 3 of § 139 of the Code.
    An irregularity in the mode of entering up a judgment, is waived by an appeal from the judgment; and after an affirmance upon the appeal, a motion to set aside the judgment for irregularity will not be entertained.
    The defendants having lost the right to move to set aside the judgment, upon the ground of irregularity, the Court permitted the plaintiff to amend the judgment by entering it up for the penalty, that other suitors, if any, might be enabled to have the amounts recovered by them levied under the judgment.
    Appeal by the plaintiff from an order made at Special Term, setting aside a judgment as irregularly entered.
    One Mary Higgins obtained a judgment in the Fourth District Court, against the defendant" Lyons', "who is a constable in the city of Hew" York, for official misconduct, and on the return of the execution unsatisfied, leave was obtained of the Court of Common Pleas to commence an action upon Lyons’ bond.
    An action was commenced against Lyons and his surety Char-lock. The summons was for a money demand on contract, and the complaint claimed to recover the sum of $97 25, with interest from the date' of the recovery of the judgment against Lyons. The defendants appeared and answered, and on a motion for judgment upon the ground of the frivolousness of the answers, the Judge at Special Term decided that the answers contained no defence, and ordered judgment to he entered up for the amount claimed.
    Erom the judgment thus obtained, an appeal was taken by the defendants to the General Term, where it was affirmed.
    Subsequently a motion was made by the defendants at Special Term to vacate and set aside the judgment for'irregularity.
    The motion was granted, with the following opinion, by
    TTtt.tov, J.—The action being to recover damages for a breach of the covenant in the defendant’s bond, the summons should have been in the form prescribed by Sec. 129 of the Code, sub. 2; but by appearing and answering, the defendants waived in this respect the defect in the summons served.
    They were entitled, however, to notice of assessment of the plaintiff’s damages ; and as it appeared from the roll filed that they had not such notice, and indeed that the damages of the plaintiffs have not been assessed or ascertained in the due or proper manner, the judgment entered is therefore irregular, and must be vacated. (Tuttle v. Smith, 14 How. Pr. 454; Code, § 246, sub.2.) In all actions of this nature, the damage must be assessed by a jury or ascertained by a referee, as the Court may direct. (3 Rev. St. 5th ed. 661, § 7.)
    Motion granted.
    ' Erom the order entered, the plaintiff appealed to the General Term.
    
      Bernard Hughes, for appellants.
    I. The judgment sought to be set aside for irregularity, having "been affirmed by the General Term on appeal, became a judgment of the General Term, and could not- be disturbed or set aside by a Judge sitting at Special Term! The appeal was a trial of a question of law on the merits, and was a waiver of all irregularities in the judgment. (Wood v. Randall, 5 Hill, 264 ; Malcome v. Baker, 8 How. Pr. 303; Englis v. Furness, 3 Abbott’s Pr. 83.)
    II. It was not necessary that the plaintiff’s damages should have been reassessed by a jury or referee before the entry of judgment. (1) The act providing'for the recovery on a constable’s bond provides for the manner in which the liability of the sureties in the constable’s bona shall be ascertained. A recovery against the constable is conclusive evidence of the liability of the sureties. (Davies’ Laws, 518; Carpenter v. Doody, 1 Hilton, 467.) (2.) The plaintiff's damages were already assessed, first by the previous recovery against the constable, and second, by the Judge at Special Term, when he ordered judgment for the plaintiffs on the pleadings.
    
      D. M. O’Brien for respondents.
    The judgment as entered up was clearly irregular. Tire judgment should have been entered up for the full penalty of the bond (five hundred dollars), and there should have been an application to the Court, on notice, for relief; so that the damages sustained by the plaintiffs might be assessed by writ of inquiry, or otherwise, as the Court might direct. (2 Bev. Scat., 4th ed. 627, § 7.)
   By the Court.

Daly, F. J.

This judgment was undoubt- - edly irregular. The condition of the bond upon which the action was brought was that the defendantLyons would well and faithfully execute the office of constable, and the mode of proceeding in an action upon bonds of this nature is regulated in part by the 147th section of the act to reduce several laws relating to the City of New York into one act (Rev. Laws of 1813, p. 396), and in part by Art. 2, Tit. VI., Chap. VI., Part III. of the Revised Statutes pointing out the mode of proceeding in action upon bonds for the performance of covenants, It is not, in the sense of the fifth section of the article referred to in the Revised Statutes, a bond for the payment of money. The description of bond there meant is one for the payment of money in gross, the amount and the time for the payment of which is fixed by the condition of the bond, and in which no assessment, of damages is necessary, as nothing remains but to compute the amount of interest, which may he ascertained by the clerk (Graham’s Practice, 80S, 2 ed.); but it comes under the general class there referred to in which the plaintiff must set out in his complaint the specific breaches for which the action is brought. -This article in -the Revised Statutes is not repealed, the only modification it has undergone being the provision of the Code which allows the Court to take the proof, or to order a reference to ascertain the damages, when a judgment is taken in an action upon such a bond by default.

The 141th section of the Act of 1813 declares that where a recovery is had against a constable by a party aggrieved through the officer’s default or misconduct, that such party may obtain an^rder in this Court that the bond be put in suit, and if judgment is recovered, the act directs that this Court shall, upon motion, direct so much money to he levied upon the judgment as shall be sufficient to pay the party the debt or damages, so recovered, with costs, to be paid to the party aggrieved. If there has been an appearance in the cause, this motion must be made upon notlce_ to the opposite party, (King v. Stafford, 5 How., 30;) and since the Code, sec. 246, the Court, instead of directing an assessment, as was formerly tire practice, or a reference, may hear the proof of the recovery of the judgment against the officer, and if satisfied of the fact, make the order provided for in the act referred to. Instead of doing this, the plaintiff’ upon its being adjudged that the answer was frivolous, took a general judgment for the sum mentioned in his complaint. This was erroneous. He should have entered up judgment for the penalty of the bond, and then moved the Court for the order provided for by the Act of 1813,

But although the mode in which the judgment was entered was irregular, the defendants waived the irregularity by appealing from the judgment to the General Term ; and judgment having been given ágainst them on the appeal, they could not afterwards move" to have the judgment set aside for irregr.larity. It is a general and long-established rule, in all applications to set aside proceedings for irregularity, that the party complaining of it must make his application at the first opportnnity after he has knowledge of the fact, and before any further proceedings have been had. It is, said Lord Kenyon in Pearson v. Rauling (1 East, 77,) “ the universal practice of the Court, that when there has been an irregularity, if the party overlook it and take subsequent steps in the canse, he cannot afterwards revert back to the irregularity and object to itand to the same effect are, D'Argent v. Vivant, 1 East., 330 ; Fox v. Money, 1 Bos. & Pul., 250; The King v. Perry, 5 T. R., 464; Petrie v. White, 4 id., 10. At first it was questioned whether the rule was not confined to cases where the party complaining of the irregularity had taken some subsequent step, but in Downs v. Witherington, 2 Taunt., 243, it was held to apply equally where the party with knowledge of the irregularity remained passive, and allowed the other party to take a subsequent step ; and in Thorpe v. Beer, 2 Barn. & Aid., 548, as indicating the general policy of the Courts upon the subject, it was held, that where a party moves for irregularity he is bound to state every irregularity of which, he wishes to take advantage, and is considered to have waived all those which he does not state at the time. The principle of this rule applies equally whether the motion is made before or after judgment. In Jones v. Dunning, 2 Johns. C., 74, the defend-moved after judgment, and the Court denied the application upon the ground that they bad suffered two terms of the Court to go by, when it was to be presumed that they had notice of the proceedings against them, and to the same effect are Sharp v. Pell, 10 Johns., 487 ; Rowan v. Lytle, 4 Cow., 91 Graham’s Practice, 702, 2d ed.

The defendants in the present case knew of the irregularity, as they appealed from the judgment, and if they wished to avail themselves of it they should have moved to set the judgment aside, instead of taking an appeal from the order direeling the entry of the judgment, and from the judgment. The error in the mode of entering up tin? .judgment..could not be reviewed upon appeal. (Whitehead v. Allen, 28 Barb., 661; King v. Stafford, 5 How., 30.)

■ The appeal, therefore, must have been brought upon other grounds, or for delay ; and it is not to be tolerated that a party, knowing that the judgment is irregularly, entered up, shall he at liberty to appeal from it to the General Term ; and if he fails there, go to the Court of Appeals; and ultimately failing to get the judgment reversed, be permitted to do then what lie ought to have done in the beginning, that is, to move the Court to set the judgment aside as irregularly entered, without putting the other party to the expense and trouble of the appeal. It may he said that as the error consists in the way in which the judgment was entered, the Court ought, for the benefit of other parties who may recover judgment against the same officer, to see that it is properly entered up for the penalty. We do not know that any other parties will have occasion to bring suits against this officer, and we can see-that no injustice has been done, as this judgment is for the amount which the party would in any event be entitled to ; or, as was done in Martin v. Lott, (4 Abbott’s R., 365,) the defendant’s application could have been denied, with costs, upon the ground that they had lost the right to make it; and for the benefit of other pm tics, should any recover judgments against the officer for official misconduct, and that the defendants may not be made liable beyond the penal limits of their bond, the plaintiff could, and under the circumstances should, have been permitted to amend his judgment by entering it up for the penalty, with a further judgment that he have execution for the amount recovered against the officer, and costs. The order appealed from should in my opinion be modified to that effect. The defendants having lost the right to move upon the ground of irregularity, cannot complain of an order directing that the judgment be entered up properly ; that other suitors, if any there should be, may be enabled to have the amounts recovered by them levied under this judgment in the way in which the statute provides. (Davies’s Laws, 549.)

The other Judges concurred.  