Graham v. Wells

Harris, Justice. Hpon the commencement of an action for the recovery of personal property, the defendant has the right to elect whether the plaintiff or himself shall hold the property, pendente lite. Three days are allowed him, within which he may make this election. If he do not elect to hold the property himself, he may take measures to see that the security given by the plaintiff for a return of the property, in case a return should be adjudged, is sufficient. For that purpose, he may, within the three days, except to the sufficiency of the sureties. Such exception is, of itself, evidence of his election not to hold the property himself. If, on the other hand, he elects to hold the property himself, he must, within the time limited, signify such election by requiring the officer who served the process to return the property to him, and, at the same time, deliver to the officer an undertaking as provided in the 211th section of the Code. . During the three days thus allowed to the defendant, within which he may make his election, the officer is required to retain the property in his possession. If the defendant elect to hold it, the officer is still to retain the property until the sureties justify, unless, indeed, he is willing himself to take the risk of such justification. The effect of a demand of the property by the defendant, in the manner specified, is not to entitle the defendant to have the property delivered to him, but to prevent a delivery of the property to the plaintiff. If the defendant would have the property himself, he must proceed to have his sureties justify in the manner provided in the 212th section of the Code. The time within which the defendant is to proceed to have his sureties justify, is not limited. Nor need it be. It is enough for the plaintiff, that the property is to be retained by the officer until such justification takes place, unless the officer chooses to make himself personally responsible that the sureties shall justify. The plaintiff cannot have the property, and whether it remains in the hands of the officer or the defendant, does not concern him farther than to know that he has sufficient security for the delivery of the property to him, in case [379] he obtains a judgment for such delivery. This security he has in the liability of the officer, until the sureties have completely justified. In this case, the defendant elected to hold the property himself. For that purpose he required that it should be returned to him, and delivered to the officer who held the property, an undertaking, executed by a sufficient number of sureties, who thereby became bound to the plaintiff in the sum of $45,000, for the delivery of the property to the plaintiff, in case a delivery should be adjudged, and for the payment to him of such sum of money as, for any cause, he might recover against the defendant. This was enough to prevent a delivery of the property to the plaintiff. Five days afterwards, for the purpose of getting the property back into his own hands, the defendant gave notice of the justification of his sureties. The notice was regular. The justification was to take place before one of the justices of this court in Hew-York. The bail resided there, with the exception of one who resided in Brooklyn, and no objection was taken to the proceedings before the judge on this ground. Although five sureties executed the undertaking, but three appeared to justify. These only justified, in the aggregate, to the amount of $60,000. The requirement of the statute is, that where more than two bail are allowed to justify, the whole justification shall be equivalent to that of two sufficient bail. The amount specified in the undertaking was $45,000. If there had been but two sureties, they would each have been required to j ustify in this amount. This would have amounted, in the aggregate, to $90,000. A less amount than this was insufficient. And yet sureties have been pronounced sufficient who have only justified to the amount of $60,000. I regard such a justification as irregular. The application for a stay of proceedings must, therefore, be granted.