
    George D. Clark, App'lt, v. William Hooper, Ex'r of John Woodward, Resp't.
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed May 9, 1893.)
    
    Replevin—Undertaking eor return of chattel in justice’s court— Justification of sureties.
    An undertaking for the return of a chattel given in pursuance of § 2925 of the Code does not require an affidavit of justification of the sureties to be subjoined thereto at the time of filing or before the return day of the summons, as the sureties are required to justify on the return day. The undertaking has no effect, no proceedings can be taken thereon, nor can the same be allowed until that time.
    2. Same—Code, § 812.
    The provisions of § 812 of the Code have no application to the under taking required by § 2925.
    Appeal from judgment dismissing the complaint, with costs.
    
      John H. Cunningham, for app’lt; Robert Dornburgh, for resp’t.
   Putnam, J.

This action was brought under- the provisions of § 2928, Civil Code. Defendant’s testator was a constable of Ticonderoga, Essex county, and, as such, on November 6, 1886, replevied a colt from the plaintiff by virtue of a summons, affidavit, undertaking and requisition in an action in justice’s court. The summons was returnable on November 13th.

On the 12th of November, plaintiff filed with the justice a notice that he required a return of the chattel replevined, also an affidavit that- he was the owner of the same, and an undertaking for $400, with two sureties, duly acknowledged.

No question was made upon the trial as to the proper form of such papers. The undertaking was not accompanied with any affidavit of justification of the sureties as required by § 812, Civil Code, nor was such undertaking approved by said justice.

On the 13th day of November, the return day of the summons, the parties appeared before, said justice, and the plaintiff in the replevin suit took the proper objection to the sufficiency of the undertaking without such affidavit to be effectual for the return of the property replevied, which objection was overruled. The defendant in such replevin suit offered sureties to justify and they were examined against the objections and exceptions of plaintiff in that suit, and they made the affidavit showing that they were each residents and freeholders in said county, and were" worth the sum of $400 over and above all liabilities that they owed, or had incurred, and exclusive of property exempt by law from levy and sale.under execution. Said sureties were then further sworn and examined, and the justice approved of the sureties to the undertaking, and allowed the same, and wrote his approval and allowance upon the undertaking. On the same day, November 13th, the defendant’s testator had notice of such allowance, and the plaintiff herein (the defendant in said replevin suit) demanded the said colt, and that the same be delivered to him. Defendant’s testator refused to deliver said colt to the plaintiff and delivered it to the plaintiff in said replevin suit.

It will be seen by the abbve statement that the only question for our consideration is whether the undertaking, which the plaintiff in this action (the defendant in the action before the justice) gave in pursuance of § 2925, Civil Code, required the affidavit of justification prescribed by § 812, Civil Code, to be subjoined thereto when filed with the justice, and his approval thereon at that time, as held by the trial judge, or otherwise.

It is apparent that such an affidavit and approval, if required, > can serve no useful purpose. Under the provisions of the statute the undertaking may be filed at any time before the return day and the sureties are required to justify upon the return of the summons, and it is at that time that the justice has authority to allow the undertaking. The undertaking has no effect, no proceedings are taken thereon, nor can the same be allowed until the return day of the summons. It would seem a useless ceremony, therefore, to require an affidavit of justification on the undertaking when filed, inasmuch as the justice cannot act in the matter until the return of the summons and the sureties are required to then justify.

Section 2925, supra, requires an undertaking similar in all respects to that required by § 1704, Civil Code. ■ Judge Rumsey, in ■ his valuable practice, holds that an undertaking given under § 1704 does not require an affidavit of justification by the defendant’s sureties to be delivered to the sheriff; that the only requirement is, that the sureties shall afterwards justify pursuant to the provisions of | 1705. 3 Rumsey’s Prac., 191.

Nor, in our judgment, do the requirements of § 812 as to the justification of sureties apply to the undertaking required by § 2925, supra. The former section should not be deemed applicable for the reason that the latter provides for the personal attendance of the sureties before the justice on the return of the summons and their justification at that time, and §§ 2925 and 2926 evidently contemplate an allowance of the undertaking after such justification. In other words, the provisions of § 812 as to an affidavit of justification by the sureties do not apply, because other provisions are made for such justification in §§ 2925 and 2926.

In cases where no justification of the sureties is required unless an exception to their sufficiency is taken, there is a propriety in requiring an affidavit of justification to be appended to the undertaking when filed. But under § 2925 the sureties are required to justify on the return day of the summons before the justice and in the presence of the parties, without any exception. Proof of the sufficiency of the sureties is then made, and the justice then allows the undertaking. Therefore, a prior affidavit is not required. See 3 Wait’s Law and Prac., 5th ed., 219.

Were it otherwise, however, if there should have been an affidavit of the sureties appended to the undertaking in question when filed, yet, as we have seen, the defect was not material. The affidavit, as above suggested, could serve no useful purpose, and, therefore, the defect was one that might properly be disregarded, pursuant to the provisions of § 729, Civil Code. Or the justice could properly allow an affidavit of justification to be appended to said undertaking on the return day, as he did, under the authority of § 730, Civil Code. These sections apply to justice’s courts. Section 3347, Civil Code, subd. 6. .

Judgment reversed, and a new trial granted, costs to abide the event.

Mayham, P. J., and Herrick, J., concur.  