Cook v. Horwitz , 21 N.Y. Sup. Ct. 542 ( 1878 )

Barnard, P. J.:

The defendant Horwitz was arrested- by the sheriff of Kings county, wider an order of arrest granted in an action to recover possession of certain personal property. .The bail required was .an undertaking, to the effect that the sureties were bound for the delivery to plaintiff of the property claimed in the action, if such delivery was adjudged; and for the payment to the plaintiff of such sum as might be recovered- in the action against the defendant Horwitz. (Section 187 — 211 Old Code.)

The sheriff took a bond from the defendants, that Iiorwitz should be at all times answerable to process under section 187 of the Code then existing, “ and for the payment to the plaintiff of such sum as may, for any cause, be recovered in the action.”

The bond did not make the sureties bound for a return of the property by Horwitz, but did fdr amenability to process by him.

The plaintiff in the action objected to the bond, and the defendant Horwitz furnished another,,and a correct undertaking from two sureties, according to section 211 above cited. After this second bond, and because the sureties were different, the plaintiff accepted from the sheriff the first undertaking as part of the security given. There was no agreement, directly or indirectly, between the sureties or the defendant Horwitz with the plaintiff'. The agreement with the sheriff, by which Horwitz was discharged from arrest upon the first undertaking, was void. (Winter v. Kinney, 1 N. Y. Rep., 365.)

The discharge from arrest Avas made upon condition other than those prescribed by statute, and the undertaking, taken as indemnity, avus void.

The second undertaking was good. The release of defendant from arrest, if made by the sheriff, was merely, in law, a voluntary escape, and he might be re-taken. The second undertaking recites that the action is for claim and delivery of personal property; and that the defendant had been arrested under subdivision 3 of section 179 of the Code, and the sureties were estopped from denying an arrest to release the defendant, from which the undertaking was given. (Decker v. Judson, 16 N. Y., 439.)

The judgment should be reversed and a neAv trial granted, costs to abide event.

Gilbert and Dyicman, JJ., concurred.

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