Howe Machine Co. v. Avery , 23 N.Y. Sup. Ct. 555 ( 1879 )

HardiN, J.:

The note in suit was not produced and read in evidence, and the plaintiff was not. in a situation to recover without complying with the statute in respect to lost instruments. Section 7 5 of the Revised Statutes provides that a recovery may be had of the amount due upon such a note. (2 R. S. [Edm. ed.], 423.) Section 76 provides as follows: “But to entitle a party to such recovery, ho shall execute a bond to the adverse party in a penalty, at least double the amount of such note or bill, with two sureties, to be approved by the court in which the trial shall be had, conditioned to indemnify the adverse party, his heirs and personal representatives against all claims by any other person, on account of such note or bill, and against all costs and expenses by reason of such claim.”

The bond was not in compliance with the requirements of the statute. First. The statute requires the party to give a bond as principal with two sureties. The condition clause is, viz.: “ Now if the said C. S. Todd and C. J. Roodenburg shall indemnify the said G. S. Avery.” * * * It does not purport that the principal, the plaintiff, shall indemnify and that the two sureties shall be obligated jointly and severally with the principal. The defendant is entitled to have three bounden parties in the condition clause of the .bond. Second. There was no proof given that the bond was executed by the plaintiff, “ The Howe Machine Company.” The acknowledgment by Van Est, attorney for the Howe Machine Company, “ simply shows that Van Est acknowledged” that he “ executed the same.” Third. Nor does the case show that any seal was attached to the instrument, either by the machine company, its agent, or either of its sureties.

We think, therefore, that the plaintiff did not comply with the 76 th section, supra, and that it was not entitled to have the approval of the referee ; nor was it in a situation to recover upon the lost note, and the referee therefore erred in allowing a recovery. The plaintiff did not entitle itself to such recovery. As this conclusion leads us to reverse the judgment entered upon the report of the referee, we do not pass upon the other questions involved in the action.

The judgment should be reversed and the order of reference vacated and a new trial ordered, with costs to abide the event.

Talcott, P. J., and Smith, J., concurred.

Judgment reversed and new trial ordered, costs to abide the event, and order of reference vacated.