
    Minnie Bonnett, Resp’t, v. Theodore Townsend, App’lt.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed January 22, 1892.)
    
    Justice’s court—Undertaking oh .appeal.
    Where the undertaking furnished on appeal from justice’s court was-sufficient at the time it was given, and the appellant has complied with the provisions of the Code in bringing his appeal, the county court has no-power to require another undertaking because of the insolvency or death of the surety.
    Appeal from a judgment of the Niagara county court dismissing an appeal from a judgment of a justice’s court entered in the office of the clerk of that county on the 1st day of June, 1891, and from three orders granted in that action.
    
      Armstrong & Duclcwitz, for resp’t; Henry M. Davis, for app’lt..
   Lewis, J.

The appellant appealed from a judgment obtained against him by the respondent in a justice’s court to the county court of Niagara county. The judgment appealed from was for-the sum of $115.20 damages. The appellant, in his notice of appeal, asked for a new trial in the county court, and, for the purpose of effecting his appeal, gave the undertaking required by § 3050 of the Code of Civil Procedure. One John Humphrey was the sole surety upon said undertaking. Humphrey thereafter, and in the year 1883, died. The appeal remaining undetermined, the respondent, in the. month of March, 1891, moved the county court for an order requiring the appellant to cause to-be executed and filed a new undertaking with new sureties, and it being made to appear to said court, by affidavits presented on the motion, that the surety Humphrey had died, and that there-was no property within the state of New York belonging to the-estate of the surety, and that the circumstances of the estate had: become so precarious that there was reason to apprehend that the: undertaking was not sufficient for the security of the respondent, Ordered that within thirty days after the service of a copy of the-order upon the appellant’s attorney, the appellant cause to be executed and filed a new undertaking with new and 'sufficient sureties, and that if he fail to give the undertaking as required, his-appeal be dismissed, with costs to the respondent. The appellant', having failed to give the undertaking as required by the order, an order was made on the twenty-fifth day of May dismissing the-appeal, with costs to be taxed, and judgment was thereupon-entered for the amount of the judgment in the justice’s court, with interest, costs and disbursements taxed at $62.72; and the-appellant thereupon appealed from the judgment and said orders, and his contention is that the county court had not the ptiwer to-grant the orders. The appellant, when he appealed, gave a sufficient undertaking; • the justice’s return had been filed and the-action was at issue in the appellate court.

The power of a court to require security for the payment of a. judgment and costs is purely a creation of the statute, and authority therefor must be found in the statute,or it does not exist. Republic of Honduras v. Soto, 112 N. Y., 310-313; 20 St. Rep., 749. We are aware of but two sections of the Code of Civil Procedure authorizing the granting of an order requiring the giving of a new undertaking in case of the insolvency of sureties, and they are §§ 1308 and 3276.

Section 1308 lias no application to this case, as it does not apply to appeals from, justices’ court to the county court It is a part of chapter 12, which has relation only to appeals to the court -of appeals, to the supreme court or superior city courts, and to appeals from final determinations in special proceedings. Section 3276 forms part of the title in reference to security for costs in cases referred to in that title and does not apply to appeals to the county court. The case of Elson v. Murray, 27 Hun, 536, has no application here. The decision in that case was placed upon the ground that the appellant in giving an undertaking perpetrated a fraud upon the court She procured her husband to become the surety upon the undertaking, knowing that he was not worth a dollar, and that he had just before signing the undertaking testified on proceedings supjilomental to execution that he had no property of any kind. The appeal in that case was dismissed upon the theory that the appellant had failed to give the undertaking required by the Code, and hence her appeal was ineffectual. In the case at bar the undertaking furnished by the appellant was .sufficient at the time given. The appellant having complied with the provisions of the Code in bringing this appeal, and the action being at issue in that court, we do not think the court had power to require another undertaking because of the insolvency or death of the surety.

It follows that the judgment and orders appealed from should be reversed, with costs of the appeal

Judgment reversed, with costs.

Dwight, P. J., and Macomber, J., concur.  