
    Bernard Ginsburg, App’lt, v. Lena Kuntz et al., Resp’ts.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed June 26, 1891.)
    
    Bond—Appeal—Exception to sureties—Justification—Death of appellant.
    When exceptions are made to the sureties in an undertaking on appeal, and notice of justification is given, but, before the day fixed for the justification, the appellant dies, and the sureties fail to justify, they are released under § 1335 of the Code of Civil Procedure, and subsequent notice that the exceptions to their sufficiency are withdrawn is without effect.
    Appeal from a judgment dismissing the complaint, with costs. The cause was tried before a judge at circuit without a jury.
    
      L. A. Gould, for app’lt; Ullo & Ruebsamen (James W. McEhinney, of counsel), for resp’ts.
   Barrett, J.

—This action is upon an undertaking on appeal to the general term of the city court. The plaintiff excepted to the sureties. Notice of justification was then given, and such justification was adjourned from time to time until finally it was set down for the 12th of May, 1890. Upon the 10th of May, 1890, the defendant in the action died, and, consequently, the sureties failed to justify on the 12th. Nothing further was done until the 23rd of June, 1890, when the executrix of the deceased defendant was substituted as appellant, and this was followed in October of the same year by the dismissal of the appeal for non-service of papers.

We have said that nothing further was done after the defendant’s death until the substitution of the executrix as appellant. An attempt, however, was made on the 6th of June to withdraw the exception to the sureties by the service of a notice of such withdrawal. This notice was signed by the plaintiff’s attorney in the suit which was as yet unrevived, addressed to the attorneys who had acted for the defendant in that suit in his lifetime. These attorneys at once replied to the notice, stating that the sureties had refused and failed to justify. This notice of June 6th was a complete nullity. The waiver of justification or the withdrawal of the exception was a step in the action, and it is clear that no step could be taken in the action, after the death of the defendant, until the appeal had been regularly continued, and the legal represetative of the defendant brought in. But even if the notice had been served over again after the substitution of the executrix, it would not have availed the plaintiff, for the reason that the failure to justify on the 12th of May, released the sureties upon the undertaking. Manning v. Gould, 90 N. Y., 476.

This ' case is entirely in point. There one of the sureties appeared upon the day appointed for the justification, and then learning of the defendant’s death refused to sign his examination, while the other surety, for the same reason, refused to appear. Here the sureties did not appear upon the 12th of May, and did not then express their refusal to proceed. But this distinction is immaterial. The material fact is, that they did not, and could not, justify. The defendant was dead, and the justification being a step in the action, could not proceed until the revival of the appeal in due course. There is no provision of the Code to meet such a case, and the sureties could not have justified under any new or authorized notice after the substitution of the executrix as appellant. The stay of proceedings fell with the death of the defendant, and the failure of the sureties to justify. And, further, the subsequent refusal of the sureties to justify was as effective, if such an expression of refusal were needed, as the refusal of the sureties in Manning v. Gould. For whether such refusal was expressed on the day appointed for the justification, or on a subsequent day, is certainly unimportant, as the defendant was dead on the earlier day. The plaintiff was at liberty to proceed upon his judgment immediately after the refusal to justify on the 12th of May. Nothing stopped him thereafter except the provisions of the law forbidding the issuance of an execution against a decedent’s estate without leave of the court. If a stay had been sought after the substitution of the executrix as appellant, such executrix would have been compelled to make a special application to the court, when a stay could have been granted to her upon proper terms. A new undertaking might then have been required, but certainly the old undertaking could not have been revived and made to serve as such security. We have no doubt, therefore, that by the force of § 1335 of the Code of Civil Procedure, as interpreted in the case cited, the sureties, having been excepted to and having failed to justify, were discharged of all liability under the undertaking.

The judgment appealed from should be affirmed, with costs.

Van Brunt, P. J., and Patterson, J., concur.  