Troy Carriage Works v. Muxlow

The action was in replevin, and the defendant

gave an undertaking, commonly called a counter-bond, to retain the property, and served upon the plaintiff’s attorney the notice of the justification of sureties, required by sectión 1704 of the Code.

On October 26, 1895, the time appointed for justification, the parties attended, and the matter was Adjourned to October, 29. On the adjourned day, one of the two sureties appeared; the plaintiff’s attorney examined him, and his' justification was further adjourned to November 7. ■ On the last-mentioned date the parties again appeared, and the defendant moved for a further adjournment. The plaintiff opposed the application; but an adjournment was nevertheless directed by the court to-November 9.

On November 8, the plaintiff obtained an order to show cause, returnable November 12, why an order should not- be made to the effect that the sureties had failed to justify as required by-law^ and . that the sheriff be directed "to-deliver the property replevined to the plaintiff.. The order contained a stay of the defendant’s proceedings in the meantime. The defendant appeared on November 9, pursuant to the adjournment, presented a new undertaking, with a new surety in addition to'the- one who originally appeared for examination, and on the plaintiff’s failure to appear this undertaking was approved.

On November 18, 1895, the plaintiff’s motion was heard and denied ; but the sureties Were required to appear, for justification on two days’ notice after service of a demand for justification by the plaintiff’s attorneys. The plaintiff appealed from this order, and from its affirmance at General Term- the present appeal is taken.

It is claimed by the plaintiff that the defendant’s practice was irregular, and that it became entitled to the., relief applied for, because the adjournment of the justification from November 7 to November 9, without its consent, was' unauthorized, as the power of the court to adjourn was by law limited to. the next judicial day!

*563Section 1705 of the Code, in regard to the justification of sureties in an action to recover a chattel, prescribes, that: “ The provisions regulating the justification of bail, contained in article third, of title first, of chapter seventh of this act, govern, except as otherwise expressly prescribed in this article, with respect to the notice of justification of the sureties; the officer before whom they must justify; the substitution of new sureties; or a new undertaking; the examination and qualifications of the sureties, and the allowance of the undertaking,” etc.. ' The effect of this provision is to make sections 578 and 580 applicable. Section 578 provides for notice for justification of the same or other bail, and if othnr bail be given a new undertaking must be executed. Section 580 prescribes, that: “ For the purpose of justification, each of the bail must attend before the judge, at the time and plape mentioned in the notice, and be examined on oath, on the part of the plaintiff, touching his sufficiency, in such manner as the judge in his discretion thinks proper. The judge may, in his'discretion, adjourn the examination from day to day, until it is completed; but- such an adjournment must always he to the next judicial day, unless by consent of parties,” etc. This section is substantially section 195 of the former Code, with the words italicized added. Under the part which is new, the plaintiff claims the power to adjourn is limited.

The provision was evidently added more for the convenience of sureties and the protection of the defendant than for the benefit of plaintiff. It is directory, not mandatory, and does not render a reasonable adjournment illegal to the extent of impairing the proceedings. 23 Am. & Eng. Ency. of L. 458; Endlich on Stat., § 436; Sedg. on Stat. L. (2d ed.), by Pomeroy, p. 316. The court, in the exercise of its discretion, had the power to grant the adjournment, and but for the stay-, the approval of the undertaking on November 9 would have been sufficient to satisfy the statutory requirements. The provision being remedial, is not to be strictly- construed. Code, § 3345.

The Code contains general' provisions for enlarging the time within which proceedings in an action are to be taken (§ 731. See,, also, Martine v. Lowenstein, 68 N. Y. 456); and for relieving from the consequences of omissions to comply within the time prescribed. §§ 721, 783. These provisions show that where time is not of the essence of the proceeding, the tend*564ency is to extend it and relieve, from past omissions in .respect thereto. The provision made especially applicable to this class of cases is that relating to the* justification of bail on arrest, and it would seem extraordinary if persons temporarily discharged on bail should have their sureties rejected in every case where they could not (perhaps by circumstances beyond their control, attend on the day appointed for the justification, or on the day'following; yet in the case of an unyielding creditor, this result with incarceration of the defendant might follow, and the court would be powerless to prevent it if the plaintiff’s contention is to prevail. The former practice permitted further time to defendants in such cases upon cause shown. 1 Wait’s Pr. 684; Burns v. Robbins, 1 Code R. 62; West’s Bail, 1 Chitty, 292; Hamilton v. Dainsford, 2 id. 82.

In view of the prevailing and growing sentiment in favor of personal liberty, it cannot be inferred that the legislature intended, by adding, the provision limiting an adjournment, to the next" judicial day, to deprive persons whose liberty was at stake of privileges they had ■ previously enjoyed. It should rather be presumed that the addition was made for their protection to prevent pursuing creditors from obtaining long adjournments for purposes of oppression. To administer the • act intelligently, a reasonable discretion must be exercised. See 1 Ency. of Pl. & Pr. 238; Ex parte Rutter, 3 Hill, 464.

If section 580 is to receive a liberal construction to prevent oppression in arrest cases, it cannot be materially changed in 'other proceedings to which it applies; for uniformity.of interpretation, not' diversity, is the guiding precept of the law.

The effect of the stay procured by the plaintiff was to suspend proceedings on the justification until after its motion was decided, taking away - no right already acquired and ' avoiding no act already done (2 Till. & Shear. Pr. 905); it merely- postpohed the justification until the entry of the order on the decision. 23 Am. & Eng. Ency. of L. 548.

The defendant claims that the counter-bond was legally approved ón November 9, because he had at that time no persona! notice of the stay. 1 The affidavit- of his attorney shows -that the order containing the stay must have been served at his office on Friday afternoon, November 8. after 4 p. m„ although he did not receive it until late the following day; hence his want of knowledge *565thereof at' the time the undertaking was approved. The service made was sufficient (Code, § 797)' to-charge the attorney with notice of the order and the stay, and what he did' thereafter in violation thereof was irregular. An attorney cannot, by absenting himself from his office, no matter for what cause, relieve himself or his client from the effect of the service of papers, legally made.

The approval of the counter-bond, in violation of the stay, was a nullity (Duncan v. Ins. Co. 2 Wend. 625; Starr v. Francis, 22 id. 633; Mallory v. Ins. Co., 7 Hill, 192; White v. Klinken, 16 Abb. Pr. 109; Devlin v. Mayor, 9 Daly, 331; Corn Ex. Bk. v. Kimball, 20 Abb N. C., 290); and was so regarded by the. court upon the decision of the motion; for the court inserted a provision requiring the sureties to attend for justification on two days’ notice from the plaintiff’s attorney". The plaintiff having, by his motion and the stay contained in the order, prevented the justification of the sureties on- ¡November 9, and suspended such examination until the decision of the motion, the court properly fixed a method by which the justification might be resumed at the pleasure of the plaintiff, to be expressed in a two days’ notice, and permitted a new undertaking to be given as provided by section 580, supra.

The question, therefore, resolves itself into one of practice in the court below. Ho substantial right was denied, and we cannot review what seems to have been nothing more, than the lawful exercise of a legal discretion. Soule v. Veyrac, 13 Misc. Rep. 168; Abram French Co. v. Marx, 10 id. 384.

The order appealed from must be affirmed, with costs.

Daly, P. J., and Bischoff, J., concur.

Order affirmed, with costs.