
    Bonnett v. Townsend.
    
      (Supreme Court, General Term, Fifth Department.
    
    January, 1892.)
    Appeal erom Justice Court—New Undertaxing—Death oe Surety.
    A party appealing from a justice’s court to the county court cannot be compelled to file a new undertaking in case of the death or insolvency of the surety to his original undertaking, either under Code Civil Proc. § 1308, which is limited to appeals other than from justices’ courts, or under section 3276, which applies only to the undertaking to secure costs required of plaintiffs in certain cases at the beginning of an action.
    Appeal from Niagara county court.
    Action by Minnie Bonnett against Theodore Townsend. Judgment for plaintiff. From a judgment dismissing an appeal, and from three orders granted in the action", defendant appeals.
    Beversed.
    Argued before Dwight, P. J., and Macomber and Lewis, JJ.
    
      Henry M. Bams, for appellant. Armstrong & Buokwitz, for respondent.
   Lewis, J.

The appellant appealed from a judgment obtained against him by the respondent in a justice’s court to the county court of Niagara county. The judgment appealed from was for the sum of $115.20 damages. The appellant, in his notice of appeal, asked for a new trial in the county court, and, for the purpose of effecting his appeal, gave the undertaking required by section 3050 of the Code of Civil Procedure. One John Humphrey was sole surety upon said undertaking. Humphrey thereafter, and in the year 1883, died. The appeal remaining undetermined, the respondent, in the month of March, 1891, moved the county court for an order requiring the appellant to cause to be executed and filed a new undertaking, with new sureties; and it being made to appear to said court, by affidavits presented on the motion, that the surety, Humphrey, had died, and that there was no property within the state of New York belonging to the estate of the surety, and that the circumstances of the estate had become so precarious that there was reason to apprehend that the undertaking was not sufficient for the security of the respondent, it was ordered that within 30 days after the service of a copy of the order upon the appellant’s attorney the appellant cause to be executed and filed a new undertaking, with new and sufficient sureties, and that, if he fail to give the undertaking as required, his appeal be dismissed, with costs to the respondent. The appellant having failed to give the undertaking as required by the order, an order was made on the 25th day of May dismissing the appeal, with costs to be taxed; and judgment was thereupon entered for the amount of the judgment in the justice’s court, with interest, costs, and disbursements, taxed at $62.72, and the appellant thereupon appealed from the judgment and said orders; and his contention is that the county court had not the power to grant the orders. The appellant, when he appealed, gave a sufficient undertaking, the justice’s return had been filed, and the action was at issue in the appellate court.

The power of a court to require security for the payment of a judgment and costs is purely a creation of the statute, and authority therefor must be found in the statute, or it does not exist. Republic of Honduras v. Soto, 112 N. Y. 310-313, 19 N. E. Rep. 845. We are aware of but two sections of the Code of Civil Procedure authorizing the granting of an order requiring the giving of a new undertaking in case of the insolvency of sureties, and they are sections 1308 and 3276. Section 1308 has no application to this case, as it does not apply to appeals from justice’s court to the county court. It is a part of chapter 12, which has relation only to appeals to the court of appeals, to the supreme court or superior city courts, and to appeals from final determinations in special proceedings. Section 3276 forms part of the title in reference to security for costs in cases referred to in that title, and does not apply to appeals to the county court. The case of Elson v. Murray, 27 Hun, 536, has no application here. The decision in that case was placed upon the ground that the appellant, in giving an undertaking, perpetrated a fraud upon the court. She procured her husband to become the surety upon the undertaking, knowing that he was not worth a dollar, and that he had, just before signing the undertaking, testified, on proceedings supplemental to execution, that he had no property of any kind. The appeal in that case was dismissed upon the theory that the appellant had failed to give the undertaking required by the Code, and hence her appeal was ineffectual. In the case at bar the undertaking furnished by the appellant was sufficient at the time given. The appellant having complied with the provisions of the Code in bringing his appeal, and the action being at issue in that court, we do not think the court had power to require another undertaking because of the insolvency or death of the surety. It follows that the judgment and orders appealed from should be reversed, with costs of the appeal. All concur.  