
    Corn Exchange Bank, appellant, v. Alphonso W. Blye, respondent.
    
      (Court of Appeals,
    
    
      Filed April 27, 1886.)
    
    1. Replevin—Undertaking given by defendant after judgment, and CHATTELS RECLAIMED PENDING APPEAL— CODE OF ClVIL PROCEDURE, § 1714.
    Plaintiff sued to recover certain bonds, giving a proper undertaking to the sheriff, and recovered judgment, November 5, 1885, notice of which was served on defendant November 7th. Defendant served an undertaking to reclaim the bonds, with notice of justification, November 9th. Plaintiff moved to set it aside, and obtained a stay of proceedings. Pending the motion to set aside the undertaking an appeal was taken from the judgment by defendant. Held, that the motion was properly denied on the ground that plaintiff had not secured the right to enforce the judgment and therefore could not cut off defendant’s rights initiated under § 1714, Code of Civil Procedure.
    
      2. Same—Condition of undertaking—When fixed.
    The condition of the undertaking does not become fixed and determined until the final determination of the action, and this cannot be until the appeal is disposed of.
    3. Same—Stay—Failure of sureties to justify.
    Where defendant’s sureties failed to justify because of a stay of the proceedings granted in an order to show cause why the undertaking should not be set aside, the stay becomes vacated when the motion is denie.i, and the defect in justifying may tlien may be corrected.
    Appeal from an order of the general term of the supreme court, first department, affirming an order of special term, denying plaintiff’s motion to set aside an undertaking, and notice of justification of the sureties therein named, in an action for the recovery of chattels.
    
      L. A. Gould, for appellant, Corn Exchange Bank.
    
      Elihu Root, for respondent, Alphonso W. Blye.
   Per Curiam.

The plaintiff brought an action to recover certain bonds of the defendant, and caused to be executed and delivered to the sheriff a proper undertaking and requisition to take possession of the same pending the action. On November 5, 1885, the cause came on for trial, and a verdict was directed in favor of plaintiff, and a judgment entered thereon, which judgment, together with a notice of entry, was duly served upon the defendant, November 7, 1885. The defendant served an undertaking to reclaim the bonds, with notice of justification, on November 9, 1885, two days after entry of judgment. Plaintiff moved to set aside the defendant’s undertaking, and obtained a stay of proceedings. Pending the motion to set aside the undertaking, and before the hearing thereon, an appeal from the judgment was taken by the defendant. The motion, when heard by the special term, was denied, and, according to the opinion of the general term, it was disposed of upon the ground that plaintiff had not secured the right to enforce the judgment obtained, and could not, therefore, cut off the defendant’s rights initiated by the proceedings under section 1704 of the Code of Civil Procedure.

The appellant claims that there is no right in the defendant to reclaim chattels after a trial of the action upon the merits, and the entry of a judgment against defendant, which adjudges the delivery and possession of the chattels to the plaintiff; and it relies upon certain provisions of the Code relating to the subject, viz., sections 1694, 1703, 1704, 1717. The answer to this position is that the condition of the undertaking did not become fixed and determined until the final determination of the action, and this could not be until the appeal had been disposed of. The defendant only became bound to deliver the chattels recovered when the plaintiff had a right to enforce a judgment in its favor. ’This right did not exist so long as the appeal was pending. Upon the judgment being finally affirmed upon appeal, the ■contingency would happen upon which the liability of the sureties would be fixed and determined, and a delivery of the chattels would be finally adjudged. In the meantime, the proceedings had for justification of the sureties, before judgment was entered, could be completed afterwards, and before judgment was obtained, upon which the final liability of the sureties depended. The failure of the sureties to justify, and the allowance of the undertaking, was ■caused by the stay of proceedings granted on the order to show cause why the undertaking should not be set aside, and the defendant was thus prevented from perfecting the undertaking. The stay mentioned became vacated when the motion was denied. If the defendant’s undertaking, the perfecting of which had been stayed, was defective and insufficient, ample prevision is made for amending it, which amendments may be allowed by the court in furtherance of justice. It is not now necessary to determine how this should be done, as it is for the supreme court to regulate its own practice.

There is no sufficient reason for setting the undertaking .aside, upon the motion, because it is not in conformity with the provisions of the Code, Such objection wxmld properly arise upon the application for the allowance of the undertaking; and if, at that time, the objections were deemed valid by the judge, it could be amended. The ■opinion of the general term mainly covers all the questions raised.

The order should be affirmed.

All concur, except Andrews, J., not voting.  