
    Juliette R. C. Brady, Appellant, v. Robert F. Brundage, Sheriff, etc., Respondent.
    (Argued December 8, 1874;
    decided December 15, 1874.)
    The liability imposed by section SOI of the Code upon a sheriff after the arrest of a defendant, if bail be not given or the sureties do not justify when excepted to, is not absolute; his liability is that of bail, with its privileges and qualifications, and he is entitled to discharge that liability in the same manner as is allowed to bail.
    Accordingly held,, in an action against a sheriff to enforce such liability, that the court had power to grant an order exonerating him upon surrender of the person arrested to actual custody; that this power could be exercised upon- sufficient excuse being shown after the time prescribed by the Code (§ 191), i, e., twenty days from the commencement of the suit, had elapsed; that it was within the discretion of the court to determine as to the sufficiency of the excuse, and its decision thereon could not be reviewed here.
    Appeal from order óf the General Term of the Supreme Court in the second judicial department, affirming an order of .Special Term exonerating defendant, as bail of one John J. McGurk, and dismissing the complaint on payment of ■ costs. (Eepovted below, 2 FT. Y. S. C. [T. & 0.], 621.)
    The plaintiff commenced an action against said John J. McGurk, in which she procured an order of arrest. The defendant, then the sheriff of Westchester county, under this order arrested McGurk and took from him an undertaking' signed by two sureties, who failed to justify on their being excepted to by plaintiff. Flo new arrest was made and no new undertaking was given.
    McGurk fled to Texas and remained there in concealment until after judgment was obtained against him and after an execution against his' property was returned unsatisfied, and one against his person that he could not be found. This action was commenced against the sheriff in February, 1873. While pending, and in September, 1873, the sheriff rearrested McGurk and surrendered him in the county jail of Westchester county,, and thereupon made this application to be exonerated from his liability.
    
      C. Bainbridge Smith for the appellant.
    Prior to the Code, under the Revised Statutes, defendant would have been liable to plaintiff. (2 R. S., 349, §§ 16-21.) The Code has not made any change as to the liability, but only as to the mode of enforcing it. (Code, §§ 201, 193-196; 2 R. S., 349, §§ 16-21; Cosine v. Walter, 55 N. Y., 304, 308; Decker v. Anderson, 39 Barb., 347.) The arrest of McGurk by the sheriff, after his liability became fixed, was - unwarranted. (Parker v. Curtis, 10 Abb. Pr., 279; Guntley v. Wheeler, 4 Lans., 495 ; Patton v. Steward, 1 Hall, 38; Thompson v. Lockwood, 15 J. R., 256; Lansing v. Fleet, 2 J. Cas., 3 ; Littlefield v. Brown, 1 Wend., 398; Arnolds. Stevens, 19 id., 514; Bk. of Geneva v. Reynolds, 12 Abb. Pr., 81; McKenzie v. Smith, 48 N. Y., 143.)
    
      Amasa J. Parker for the respondent.
    The court had power, in its discretion, to make the order of exoneration in this case. (Leaver v. Genner, 10 Abb., 256 ; Sartos v. Merceques, 9 How., 188 ; Buckman v. Carnley, id., 180; Bk. of Geneva v. Reynolds, 20 id., 18; Metcalf v. Stryker, 31 N. Y., 255.) It was no objection to the making of the order that twenty days had expired. (Baker v. Curtis, 10 Abb., 279; Thomas v. Buckley, 5 Cow., 25 ; Gilbert v. Buckley, 1 Duer, 668; Phoenix Co. v. Mowatt, 6 Cow., 599; Laflin v. Fowler, 18 J. R., 335 ; People v. N. Y. R., 2 Wend., 263.) It being - a question of discretion no appeal lies to this court. (Code, § 11, sub. 4; Cushman v. Brundrett, 50 N. Y., 296; People v. Hill, 53 id., 547; Gray v. Fisk, id., 630 ; Bolles v. Duff, 42 id., 256.)
   Per Ouriam.

If the order appealed from was within the power of the court, its discretion in exercising that power is not re viewable by us. By section 201 of the Code of Procedure, it is enacted that, after the arrest of a defendant, if bail be not given, or justified, the sheriff shall himself be liable as bail. It is insisted on the part of the appellant that, by the true construction of this section, the sheriff is made liable as bail, and becomes, thereby, absolutely liable, and is not entitled to discharge the liability, in the various modes allowed to bail. We do not consider this the proper construction of the provision, whether the language or the reason and sense of the statute are regarded. By the language, the sheriff is to be liable as bail. To the question how is bail liable, it must be answered, upon certain terms and conditions, and subject to certain methods of discharge from liability. All these go to make up the answer to the question how bail is liable, and, of course, the liability of any one, who is placed in the position of bail, is subject to the same qualifications. The reason of the thing leads to the same conclusion. The misconduct or failure on the part of the sheriff, is, that bail has not been put in, or has failed to justify. To impose upon him the same liability which bail would have borne, is exactly consonant to justice.

This reasoning receives no qualification or diminution of cogency, from the fact that the statute gives the sheriff a still further opportunity to put in bail in his own exoneration. If he does not do that, his liability still remains only that of bail, and subject to all the qualifications that attach to that sort of liability. The cases sustain these positions. (Buckman v. Carnley, 9 How Pr., 180; Sartos v. Marceques, id., 188; Seaver v. Genner, 10 Abb. Pr., 256; which were cited with approbation in Metcalf v. Stryker, 31 N. Y., 255; and in Bensel v. Lynch, 44 id., 162.) The ease of McKenzie v. Smith (48 N. Y., 143), does not conflict with the position stated. In that case the decision turned upon the question whether the sheriff did not incur a peculiar liability as bail, in case of an arrest, under the third subdivision of section 179. It was held that his liability in that class of cases was commensurate with that imposed by an undertaking under section 211, and that this liability could not be discharged by the surrender of the defendant. Uothing said or decided in Cozine v. Walter (55 N. Y., 304), conflicts with the construction we have put upon the section in question.

Under section 191, one of the privileges of bail is to exonerate himself from liability by the surrender of the defendant to actual custody, within twenty days after suit brought, or within such further time as may be granted by the court. In this case, the order of the court was made after the expiration of the twenty days. It has, however, been decided, that this is within the power of the court, upon a proper excuse being shown. (Baker v. Curtis, 10 Abb. Pr., 279 ; Gilbert v. Buckley, 1 Duer, 668.) The power of the court existing, the sufficiency of the excuse is in the discretion of the court to whom the motion was directed. It cannot be re-examined here.

The appeal should be dismissed, with costs.

All concur.

Appeal dismissed.  