Adee v. Adee , 23 N.Y. Sup. Ct. 46 ( 1878 )

Boap.dmaN, J.:

The plaintiff was nonsuited upon the ground that the undertaking was void in that it was taken by the sheriff colore officii, in violation of the provisions of the Code, and of the order of arrest under which ho acted. The alleged wrongs consist in accepting a bond with one surety when the Code requires two, and in taking an undertaking in the sum of $2,000 when the order of arrest required bail in the sum of $1,000 only. We feel compelled to differ from the learned judge at Special Term, who held that this bond was taken by the sheriff colore oficii. The evidence shows quite conclusively that the sheriff did not claim the right to take such a bond. He disclaimed such right. The bond was taken subject to the approval of plaintiff’s' attorneys, and at the urgent solicitation of defendants’ testator. He was assured by the sheriff he had no right to take this bond, and if it was not satisfac-torj to plaintiff’s attorneys a bond, snob as the Code and tbe order of arrest required, was to be given. Here is not the oppression, the corrupt use of official power, which will avoid the bond. (Decker v. Judson, 16 N. Y., 442; Burrall v. Acker, 23 Wend., 606.) But this bond or undertaking was not taken to or for the benefit of the sheriff, but of the plaintiff in the action. As between the plaintiff and the defendant, or his surety, any kind of bond or agreement would suffice, if the same was good at common law. (Decker v. Judson, ante ; Ring v. Gibbs, 26 Wend., 502; Morton v. Campbell, 37 Barb., 179; S. C., 14 Abb., 410, 415, 416; Winter v. Kinney, 1 N. Y., 365; Shaw v. Tobias, 3 id., 188.) The right of the plaintiff to imprison the defendant in that action, unless he gave bail, was undoubted. The defendants’ testator, with full knowledge of the facts, in the absence of fraud, corruption, or deceit, voluntarily executed this undertaking to secure the release of the defendant in that action. By reason of the plaintiff’s acceptance thereof, the release of the person arrested was accomplished. The plaintiff has accepted and relied upon such security, and defendants are estopped from setting up the invalidity of their testator’s acts. (See authorities cited, ante; Harrison v. Wilkin, 69 N. Y., 413.) We fully concur with the learned judge that the representatives of the testator are bound by the undertaking, if valid. The obligation thereby assumed survived the death of the testator, although the right of action accrued only after his death, and his executors become hable as such for the damages suffered.

For the reasons given, the order denying a new trial must be reversed, the nonsuit set aside; and a new trial granted, with costs to abide event.

Leabned, P. J., and Westbbook, J., concurred.

Order reversed, and nonsuit set aside; new trial granted; costs to abide event.