
    Edward Sutorius, App’lt, v. Eugene W. Dunstan, Resp’t.
    
      (New York Superior Court, General Term,
    
    
      Filed March 2, 1891.)
    
    Undertaking—Arrest—Liability of sureties.
    An undertaking given upon obtaining an order of arrest was conditioned that plaintiff, if held not entitled thereto, would pay all costs awarded to defendant and all damages which he may sustain by reason of the arrest, not exceeding a specified sum. Held, that the sum specified included both costs and. damages, and that the plaintiff having paid costs to that amount the sureties are not further liable on the undertaking for the damages from the arrest.
    Appeal by plaintiff from a final judgment for defendant, on demurrer to complaint.
    
      Charles Stewart Davison, for app’lt; Daniel D. Sherman, for resp’t.
   Per Curiam.

The complaint charged the defendant as one of the sureties upon an undertaking given to procure an order of arrest. It was averred that in the action in which the order was granted there was a judgment for costs for the defendant for a sum greater than $250 and that such judgment was paid. On the argument, it is not denied that this payment enured to the benefit of the surety, this defendant. But it is claimed that he remained liable to pay damages which the plaintiff sustained, by reason of the arrest, not exceeding $250. And the action is to recover the damages to that extent.

The undertaking follows the words of § 559, Code Civ. Pro. The undertaking of the surety is that if the defendant recover judgment or if it is finally decided that the plaintiff was not entitled to the order of arrest, the plaintiff will pay all costs which may be awarded to the defendant and all damages which he may sustain by reason of the arrest, not exceeding the sum of $250.

The wording is such that the meaning may be obscure, yet on the whole it should be held that the sum specified is intended to describe the limit of the liability of the surety. To make such a provision practically effective, in protection of the person arrested, there should be a surety or a party that possesses means enough to fulfill the undertaking and a method prescribed for ascertaining the means. It has always been the practice to require some kind of proof on this subject.

On this subject § 812, Code Civil Procedure, requires that a bond or undertaking executed by a surety must be accompanied by his affidavit to the effect that he is worth the penalty of the bond or the sum specified in the undertaking, etc. There is an intent to place the penalty, if it be a bond, on the level with the sum specified in the undertaking. It is evident that the latter is a sum in which the surety undertakes. There is no reason for excluding from the justification a test of sufficient means to pay costs, and yet this would be the result if the sum specified referred only to damages. These considerations guide us to the result that the section intends that all costs and all damages shall be taken in conjunction and that to them together shall be applied the words: “not exceeding the sum specified in the undertaking.”

As on the argument it is conceded that the defendant has upon his undertaking the benefit of the payment of costs to the extent of $250, he is not further liable upon the undertaking for the damages from the arrest.

Judgment affirmed, with costs.

Sedgwick, Ch. J., and Truax, J., concur.  