Haberstro v. Bedford , 5 N.Y. St. Rep. 399 ( 1887 )

Barker, J.

(dissenting).

The plaintiff, as sheriff, arresteu one Warren by virtue of an order of arrest in a civil action wherein one Douglass was the plaintiff, by which he was commanded to hold him to bail in the sum of $1,200. Warren, immediately upon liis arrest, presented to the sheriff a bail bond, executed by himself and the defendants as his sureties, wherein they jointly and severally agreed “ that Warren should at all times render himself amenable to the process of the court during the pendency of the action and to such as might be issued to enforce the judgment therein.” The sheriff thereupon discharged Warren from custody. The plaintiff in the action excepted to the sufficiency of the sureties, and they failed to justify. Thereafter the plaintiff in that action recovered a judgment against Warren in the sum of $1,243, upon which a body execution was issued to the plaintiff, as sheriff, who returned the same not found. The sureties having failed to justify, the sheriff became liable to the plaintiff as bail. (Code of Civil Pro., § 587; Arteaga v. Conner, 88 N. Y., 403 ; Clapp v. Schutt, 44 N. Y., 104.)

Upon the return of the body execution an action was commenced by Douglas against the sheriff, as bail, in which he appeared and answered, the trial of which resulted in a verdict against the sheriff, upon which judgment was entered for $2,005.38 damages and $104 costs, which the sheriff paid before the commencement of this action. During the pendency of the action against the sheriff, and after the time to answer had expired, the sheriff moved the court for an exoneration as bail, on surrendering Warren into custody. This application was denied. (Douglas v. Haberstro, 21 Hun, 320; S. C., 82 N. Y., 572.)

The bail taken upon the arrest, unless they justify, or other bail. are given and justify, become liable to the sheriff for all damages which he may sustain as bail. (Sec. 589.) The nature and extent of the sureties’ liability over to the sheriff in such a case is clearly defined by provisions of the statute, and is measured by the extent of the latter’s liability to the plaintiff in the action; At the time the action was commenced by Douglas against the sheriff, as bail, his liability was fixed. An. execution against the property of Warren having been returned unsatisfied, and the sheriff being unable to make an arrest upon the body execution, the extent of his liability as bail was the amount of the judgment recovered against Warren. That liability the-sheriff has discharged in full by paying the judgment against himself.

The plaintiff made out a prima facie case, which entitled him to -a verdict, on producing the record of the proceedings in the suit against himself, if the undertaking executed by Warren and the defendants as his sureties was in due form as required by the statute. On the trial the defendants interposed the objection, as against their liability to the sheriff, that the undertaking executed by Warren and themselves was not in conformity to the provisions of section 575, and is made void by the provisions of section 59, chapter 3, title 2, part 3 of the Revised Statute, which declares that “no sheriff or other officer shall take any bond, obligation or security, by colour of his office, in any other case or manner than such as are provided by law; and any such bond, obligation or security taken otherwise than as herein directed shall be void.” Section 575, subdivision 3, of the Code provides, that the defendant,' on being arrested, may give bail by delivering to the sheriff a written undertaking, in the sum specified in the order of arrest, and'where the arrest is made for a cause such as that u^on which Warren was arrested, the undertaking shall be, “ that the defendant will at all times render himself amenable to any mandate which may be issued to enforce a final judgment against him in the action.” Section 561 requires that the order directing the arrest shall state a specified sum within which the defendant is to be held to bail.

The defects of the undertaking which the respondents claim makes the same void as declared by the statute are : First, That the bond does not state a sum in which the defendant should be held to bail. Second : That it contains an unauthorized provision, that the defendant should at all times rend.er himself amenable to the process of the court during the pendency of the action. The omission to state in the body of the undertaking that the parties thereto were bound in the sum specified in the order of arrest is not in our opinion fatal .to its. validity, on the ground that it is an incomplete instrument. In determining its validity so far as this objection is concerned we think the order of arrest may be read in connection with the undertaking and the.sureties liability in an action against them would be limited to the sum mentioned therein. In the. recitals of the undertaking it is stated that the order of arrest required the sheriff to hold. Warren to bail in the sum of $1,200. The argument of the appellant’s counsel, that without inserting in the undertaking the sum mentioned in the order of arrest, so as to limit the obligors liability to that, sum, they would be liable by the terms of the undertaking to the whole amount of the judgment, if it should exceed the sum mentioned in the order of arrest. We think the position is unsound and that such a construction cannot be reasonably placed upon that instrument. Section 187 of the old Code, which relates to the form of the undertaking, did not require that the same should be in a specified sum, and the provision was inserted in section 575 of the present Code so as to remove all doubt as to the extent of the sureties’ liability .in an action upon their undertaking.

It has never been held in an action against the sureties upon an undertaking, where a specified sum was not named, that the sureties were liable for the whole amount of the judgment if the same should exceed the amount mentioned in the order of arrest. If the sureties, by the terms of their undertaking, became obligated to pay the judgment which should be rendered in the action although it should exceed the sum of $1,200, the sum mentioned in the order ■of arrest, then, in our opinion, it would be void under the statute, .as unauthorized by law and exacted by.the sheriff by color of his •office. (Toles v. Adee, 81 N. Y., 222.)

The second objection presents a more serious question. The .undertaking was executed January 7, 1879. At that time section 575 of the present Code was in 'operation as a substitute for ¡section 187 of the old Code, and the provision of the undertaking .that Warren should be amenable to the process of the court during a pendency of the action was unauthorized. Section 187 of the ■Code of Procedure did contain a requirement that the bail bond should contain a provision of the nature and effect of the one found in the undertaking now under consideration. An undertaking, with a similar provision, may be demanded of the defendant, under the present Code, as a condition of his discharge from arrest, but not where the cause of the arrest was such as the one upon which Warren’s arrest was founded. The order of arrest was granted by a judge at chambers and required that Warren be held to bail in the sum of $1,200. He was entitled to a discharge from custody on complying with subdivision 3, section 575, which requires that an undertaking be executed by himself and two sureties, conditioned that he would at all times render himself amenable to any mandate which might issue to enforce a final judgment against him.

By section 548 the writ of ne exeat was abolished. Under the provisions of subdivision 4 of section 550 an order of arrest may be granted in a class of cases where, under the old chancery practice, a writ óf ne exeat might issue. But an order of arrest in that class of cases can only be issued on special application to the court. (Sec. 551.) When the order of arrest must be granted by the court an undertaking may be dispensed with altogether, or, if one is required, its conditions may be prescribed by the court. (Sec. 560.) And if no directions are set forth in the order of the court directing arrest, then the defendant may be discharged from custody on complying with subdivision 1 of section 575. The condition of amenability to the process of the court during the pendency of the action, inserted in this undertaking, is the same, in substance, as was usually required on granting a writ of ne exeat under the old practice, and the same as is now generally demanded in like cases, under the provisions of the present Code. (1 Barb. Ch. Prac., 654.)

The provision of the undertaking executed by the defendants, as sureties for Warren that he would “at all times render himself amenable to the process of the court during the pendency of the action,” was wholly unauthorized. It was an onerous condition, and if strictly observed by Warren would have required him to remain, at all times pending the action, within the jurisdiction of the court. The object of the statute, in providing the terms and conditions upon which a party under arrest shall be entitled to his discharge, was to prevent the exaction of unreasonable or oppressive bail, and to leave nothing to the discretion of the officer executing the process. The sum mentioned in the order of arrest limits the power of the officer, and if he exacts a greater sum to be inserted in tlie bond, or any other condition not authorized by law, the instrument comes within the condemnation of the statute and is void. In giving a construction to this statute the courts have been uniform in holding sheriffs and other officers, who are authorized to take bail from parties in their custody, to a strict compliance with the statute authorizing the giving of bail by parties under arrest. (Shaw v. Tobias, 3 Comst., 188; Winter v. Kinney, 1 id., 367; Barnard v. Vide, 21 Wend., 88; Webber v. Blunt, 19 id., 188; Acker v. Burrall, 21 id., 607; Becker v. Judson, 16 N. Y., 439.)

The more recent decisions on the subject are directly in point and may be followed in disposing of this case, as the facts in the cases referred to are not materially different. In Cook v. Frendenthal (80 N. Y., 202), where the action was replevin, an order of arrest ivas granted, and,'by the provisions of the statute then in force the defendant was entitled to his discharge from custody on giving an undertaking with two sureties, to the effect “ that they are bound in double the value of the property as stated in the affidavit of the plaintiffs for the delivery thereof to the plaintiffs, if such delivery be adjudged, and for the payment to them of such sum as may for any cause be recovered against the defendant.” (Code, § 187-211.) The defendants, as his sureties, executed an undertaking, which, among other things, contained a provision that lie would, at all times, render himself amenable to the process of the court during the pendency of the action. It was held that the undertaking was void as having been taken colore officii, for the reason that it bound the sureties for the amenability of the defendant to process in the action during its pendency, an obligation unauthorized by the statute under which the undertaking was given, and which could not be required from the defendant as a condition of his release from imprisonment, and that the insertion of the unauthorized condition of the bond brought the ease within the provisions of the statute declaring void unauthorized bonds.

The unauthorized provision cannot be rejected as surplusage, upon the ground that in no event could Warren have been subjected to any process of the court dui’ing the pendency of the action, and consequently no liability could arise under this clause of the undertaking. Warren was a competent witness for the plaintiff in that suit, and she might have subpoenaed him as a witness to testify in her behalf, and if he had failed to attend and' had gone beyond the jurisdiction of the court, then the sureties would have been liable in an action by the terms of the undertaking. It was not, therefore, an undertaking by the sureties for a liability on their part on the occurrence of an impossible contingency.

In Toles v. Adee (81 N. Y., 222), the order of arrest required the sheriff to arrest the defendant and to hold him to bail in the sum of $1,000. The sheriff received an undertaking from the defendant in the sum of $2,000, and discharged him from arrest. The court, in its opinion, held that the bond' was void as being unauthorized by the statute, and referred to the case of Cook v. Freudenthal with approval, and also remarked: The fact that under our practice the bail taken by the sheriff on discharging a prisoner from arrest stands in some sense both as bail to the action and bail for the sheriff, does not, we think, at all affect the application of the statute making void obligations taken colore officii, when the undertaking contains conditions not prescribed by law; nor is it, as we conceive, in the power of the plaintiff afterward to 'adopt the act of the sheriff and thereby avoid the effect of the illegality. Such a principle, if admitted, would defeat the purpose of the statute. * * * Courts justly regard with great jealousy all departure by officers holding prisoners under arrest from the strict line of duty. The undertaking in this case bound the surety in double the sum authorized by the order of arrest, and if the undertaking was to be regarded as taken by the sheriff in his official character, and in the exercise of his official authority, it must, both upon principle and authority, be held to be void. But the court, in its final disposition of the case held that in view of the other facts disclosed by the case that it was in effect a special agreement between the parties themselves, and not an undertaking exacted by the sheriff in his official capacity as a condition of the defendant’s release, and for that, reason the same was valid. -

The condition of amenability to the process of the court during the pendency of the action is positive and unqualified, onorous in its character and is a provision additional to those required by the statute and we think is condemned as void by the letter and the spirit of the statute prohibiting officers from taking a bond in any other case or manner than such as are provided by law. (The People v. Meighan, 1 Hill, 298.) By the common law an agreement good in part and void in part might be enforced as to the parts which were good and valid, but this statute condemns the whole instrument and changes the common law rule on the subject. If the statute had failed to so declare, it would not have accomplished the purpose intended

If we are correct in the views expressed as to the invalidity of the undertaking the error is fundamental and is at the base of the plaintiff’s alleged cause of action and prevents a recovery in any event. It is therefore unnecessary to consider the other points presented by the appellants.

If it be true, as the evidence tended to show, that the defendants requested the sheriff to defend the suit brought againt him as bail, and that they would' pay the cost of such defense in case of a recovery against him, it does not estop them from asserting that they never became liable under the statute for the reason that the bail bond signed by them was void. If the defendants never incurred any legal liability by reason of the execution of the undertaking, then it would seem to follow, as a legal conclusion, that their promise to pay the costs in the action against the sheriff was without consideration and invalid for that reason.

The judgment and the order should be reversed and a new trial granted and the proceedings remitted to the Superior Court of the city of Buffalo.

Judgment and order affirmed.