
    Girolamo Garofalo, Respondent, v. Joseph Prividi et al., Appellants.
    (Supreme Court, Appellate Term,
    March, 1904.)
    Action against bail — Effect of sheriff’s return of “ not found ”—Defenses— Surrender in exoneration — Orders appealable.
    A sheriff’s return of “ not found ”, made to an execution against the person of a defendant issued after final judgment rendered in an action brought against him to recover damages for a personal injury, cannot be questioned by bail, who have undertaken that he will at all times render himself amenable to any mandate issued to enforce final judgment in the action, except as specially authorized by statute.
    The defenses available in an action against bail are now prescribed by Code Civ. Pro., § 599.
    While bail may, before expiration of their time to afiswer, surrender the principal in their exoneration, compliance must be had with Code Civ. Pro., §§ 591, 592, and such compliance is not shown by an answer alleging that two days after the commencement of the action they took the principal to the sheriff and offered “to give him up ”.
    An order denying a motion to resettle another order is not appealable.
    Appeal by the defendants from a judgment of the City Court of the city of 3STew York, entered in favor of the plaintiff upon a verdict directed against the defendants, and from an order denying, the defendants’ motion upon the minutes of the trial for a new trial. The defendants also appeal from an order of the trial judge denying their motion for a resettlement of the order first mentioned, and from an order of the Special Term of the City Court denying their motion for a new trial made upon affidavits and a case made, settled and filed.
    Charles W. Dayton and Joseph E. Bullen, for appellants.
    Palmieri & Wechler, for respondent.
   Freedman, P. J.

This action is brought on an undertaking, given by the defendant Prividi, as principal, and the defendants Bozzuffi and Rafanelli, as sureties, in the sum of $500, conditioned that the defendant Prividi should at all times render himself amenable to any mandate which might be issued to enforce final judgment in an action to recover damages for a personal injury brought against said Prividi. By their answer the defendants deny the allegations of the complaint that Prividi did not render himself amenable to the mandate issued to enforce the final judgment and aver that said Prividi has always been continuously in the county of Hew York, that the sheriff did not use due diligence to find him, that no demand was made upon the sureties to produce him, that said sureties have at all times been ready and able to produce him and that on or about October 12, 1903, two days after the commencement of the action, they took him to the sheriff and offered to give him up. On the trial all evidence, offered by the defendants in support of the alligations of their answer and their denial of the allegations of the complaint above referred to, was excluded under exceptions taken by the defendants, the trial justice holding the return of the sheriff to the execution against the property and the person of Prividi, after having been received in evidence, to be conclusive, and a verdict was directed against the defendants for the amount of the judgment recovered against Prividi, namely, $634.92, to which direction exception was also taken.

The ruling holding the return of the sheriff conclusive was correct. While there are some cases in which the return of the sheriff is presumptive evidence only of the facts therein stated, yet, in an action against bail who had undertaken that the defendant would at all times render himself amenable to the process of the court, for a breach of their undertaking, the clear weight• of authority in this State is that the return of the sheriff not found ” cannot be questioned except as specially authorized by statute. Bradley & Bissell v. Bishop, 7 Wend. 353; Cozine v. Walter, 55 N. Y. 304; Hissong v. Hart, 39 N. Y. Super. Ct. 411; Denny v. Blumenthal, 8 MisC. Rep. 544, 28 N. Y. Supp. 744. The defenses available in an action against bail are now prescribed by section 599 of the Code of Civil Procedure, and no such defense was shown. So the bail may surrender the defendant in their own exoneration before the expiration of their time to answer as matter of right, but the surrender must be made as prescribed by sections 591 and 592 of the Code. At a later stage of the case the court, in the exercise of a wise discretion and for sufficient cause shown, may permit a surrender upon terms. But a surrender must be completed and then pleaded as a partial defense. Flo surrender was pleaded or shown. A mere offer “ to give him up ” is not enough.

Upon the whole case the plaintiff was entitled to the direction of a verdict, but it was erroneous to direct a verdict for a sum exceeding the amount of the undertaking, which was for the sum of $500, and the judgment must be modified by reducing the amount of it accordingly. ' This disposes of the appeal from the judgment and from the order denying defendants’ motion for a new trial made upon the minutes of the trial judge.

The defendants subsequently moved before the trial judge for a resettlement of the said order by adding at the end thereof the following, “ without prejudice, however, to any application which the defendants may make to this court at a Special Term thereof for an order setting aside the verdict and granting a new trial upon grounds other than those mentioned in section 999 of the Code of Oivil Procedure.” The motion for a resettlement was denied and from the order of denial the defendants appealed. This appeal is without merit. An order denying a motion to resettle another order is not appealable. Waltham Mfg. Co. v. Brady, 67 App. Div. 102 ; Hall v. Gilman, 87 id. 248.

Moreover, if the defendants, upon sufficient affidavits and a case regularly made and settled, could present an application to the court at Special Term for a new trial upon grounds, other than those mentioned in section 999 of the Code, which appealed to the exercise of the discretion of the court, it was not necessary to obtain leave for that purpose in the order sought to have resettled. ' The appeal from the order denying the motion for resettlement should, therefore, be dismissed.

Finally the defendants, upon affidavits and a case regu larly made, settled and filed and the orders above referred to and all the papers on which said orders were made, moved at the Special Term of the City Court “ for an order setting aside the verdict herein and for a new trial on the ground that the same has resulted in an injustice and that in the furtherance of justice a new trial should be granted; that, in cáse said new trial is ordered, the defendants may have leave of this court to renew their motion for an extension of time within which to surrender their bail in exoneration; that, in case said permission is granted, said motion for .leave to surrender may be deemed to be made upon the papers recited in this notice of motion, to the end that upon making such surrender the defendants may then make application to this court for their exoneration and for permission to serve a supplemental and amended answer setting up such surrender and exoneration; and that the defendants may have such other and further relief as may be just, together with the costs of the motion.”

This motion was denied and the defendants appealed. The denial of the motion proceeded upon the sole ground which was recited in the order entered thereon that the order of the trial judge refusing a resettlement so as to grant leave as above stated precluded the making of the motion. The ground thus assigned was clearly erroneous, as already indicated. Ordinarily, this would require that the order be reversed and the motion remanded to the court below for a determination upon its merits. But in the present case such disposition would be fruitless. The point that the defendants should be permitted to contradict the return of the sheriff has been repeatedly and correctly determined against the defendants and that in what they did and omitted to do they acted under and relied upon the advice of their former attorney of record constitutes no ground for a new trial. The avowed object of the motion is to set aside the judgment for the purpose of making a motion to surrender the principal and exonerate the bail. In opposition to that the plaintiff, among other things, showed that during the pendency of the action the defendants did move for an extension of time in which to make due legal surrender in exoneration of the bail; that said motion was denied; that no appeal was taken from the' order of denial and that leave to renew was not given. It thus appearing that no valid ground exists upon which the defendants could be relieved if the motion for a new trial were remanded, the order last considered should be affirmed, especially as the defendants, if their claim is true, have a complete and adequate remedy .against the sheriff.

For the foregoing reasons the judgment should be modified by reducing the amount of the recovery to the sum of $500, with interest, and the costs in the court below and as thus modified affirmed, without costs of the appeal.

The order denying the motion for a new trial upon a case and affidavits should be modified by striking out therefrom the ground upon which it purports to have been made and as thus modified it should be affirmed, without costs of the appeal.

The appeal from the order denying the motion for a resettlement should be dismissed, with costs and disbursements.

Scott and Blanchard, JJ., concur.

Order denying motion for a new trial modified and as modified affirmed, without costs of appeal, and order denying motion for a resettlement dismissed, with costs and disbursements.  