Chamberlain v. Dempsey , 22 How. Pr. 356 ( 1862 )

Bosworth, Ch. J.

—The defendant moves to vacate the sale of the mortgaged premises for irregularity, alleging that the notice of sale was insufficient, and that the plaintiff’s proceedings ivere stayed. The notice of sale, when first inserted, stated that the sale would he made on the 28th of December, 1861. It was published in the daily papers, viz.: in one of them on the 9th and 12th, on the 16th and 19th, and on the 23d and 26th of December last. This was a publication “for three w-eeks immediately previous to the time of sale, at least twice in each week,” within the meaning of Rule 73 [51]. (Olcott a. Robinson, 21 N. Y., 150 ; Sheldon a. Wright, 1 Seld., 497.) The sale was postponed from time to time, until the 27th of January, 1862, and the notice of sale and of such postponements was advertised in due form up to the time of sale.

The sale therefore is regular, unless the plaintiff’s proceedings were stayed.

The defendant appealed from the judgment on the 27th of December, 1861, and executed an undertaking with sureties, in such form as to comply with section 338 of the Code. On the 28th the plaintiff excepted to the sufficiency of the sureties, and the defendant gave-notice of their justification for the 4th of January, 1862. The matter of the justification was continued from time to time, until the 15th of January, 1862, when the judge made an order declaring that the sureties were not sufficient and were not approved, and “ that the defendants have ten days from this date to furnish other or additional sureties; and in the mean time all proceedings on the part of the plaintiff on this judgment, be stayed.” On the 25th of January, 1862, the defendant filed a new undertaking, executed by her and two new sureties, and served a copy thereof the same day, with an affidavit of each surety in the form prescribed by section 341, but did not then serve and has not since served any notice that the new sureties would justify.

The sureties in the first undertaking not having justified, the appeal is to be regarded as if no undertaking had been given (Code, § 341), except in so far as the order of January 15, 1862, produces a different result. If leave to furnish new securities had not been given, there would not only have been no stay after the original sureties had been rejected, but the appeal would have been treated as if no undertaking had been given, and there had not been a stay at any time.

The plaintiff contends that the order of January 15 th, 1862, could only be satisfied by the new sureties justifying within the ten days, on due notice thereof; and that this not having been done, that order is not complied with, and therefore the appellant is to be treated as if no undertaking had been given on the appeal. The defendant insists that the second undertaking, without any justification of the sureties therein, unless they are specially excepted to, complies with the order and operates as a stay.

The Code (§ 341) declares, that (on the sureties being excepted to), “ unless they or other sureties justify before a judge of the court below ... as prescribed by sections 195 and 196, within ten days thereafter, the appeal shall be regarded as if no undertaking had been given.”

Sections 195 and 196 prescribe the mode of justifying bail to the action. The practice on justifying bail, in contingencies not provided for by those sections, as it existed prior to the Code, so far as it is consistent with the Code itself, is retained. (Code, § 469.) Sections 195 and 196 of the Code did not specify what shall be done if a party is allowed to give other bail, on a failure of the first to justify, except that it requires a new undertaking. (§ 193.) There is no provision which in terms provides for excepting to new or “other bail.”

Graham’s Practice (p. 187) states that “the forms of proceedings adopted in adding bail, are the same as in the case of original b:yl, with this exception only, that they are required to justify without a new exception (Barnes, 74) ; and it is, therefore, necessary to insert in the notice of their having become bail, a notice also that they will justify.”

The cases of Gregory a. Gordon (Barnes, 74) ; Lewis a. Gadderan (5 B. & Ald., 704 ; S. C., D. & R., 350) ; Rex a. Sheriff of Essex (5 T. R., 633) ; the cases in 1 Chit., 67, 68 ; Joyce a. Pratt (6 Berry, 377) ; and Jones a. Vestris (3 Berry N. C., 676), establish this to be the well-settled practice.

Section 341 of the Code seems to have enacted this rule of ■practice, by making it imperative when sureties on appeal are •excepted to, that “they or other sureties justify . . . within ten days thereafter.” The-excepting to the original sureties makes it necessary that new or added sureties justify. .

If the .original bail fail to justify, new bail cannot be added as matter of course; unless there be time enough remaining to serve notice of new bail and of their justifying. ■, .

When bail fail to justify, the permission granted is, to put in and justify other bail. The adverse party is required to give but one notice of exception to the sufficiency of .bail; .on that he is entitled to have bail who justify on notice to-him.

The order of the 15th of January, 1862, by.giving ten days’ time to furnish other sureties, allowed the- party, -within that time, to file a- new undertaking, with sureties, and procure their justification according to the practice of the court. (Code, § 341.) The appellant had five days within which to file the undertaking and give notice of the new sureties and of their justification.

Hot having availed herself of this privilege, she is in the condition of an appellant whose sureties have failed to justify on being excepted to, and is to be treated as if no undertaking had ever been given by her. There wasmo stay at the time of the sale, and she cannot allege that there was one at any time since the appeal was taken. The sale is, therefore, regular.

On the facts of the case, it cannot be said that the referee erred in not selling in parcels. • • .

These views dispose of all questions presented by.the motion. There is no allegation that the premises were sold for less than their value, or that any person would have made higher bids. If there had been, I should be inclined, on defendant’s stipulating to bid a sum substantially larger, and giving reasonable security for performing the stipulation, to permit a rgsale. And the motion will be denied, with costs, but with liberty to the defendant to move for a resale, on making a case showing surprise, and that justice required and- will be- promoted by an order granting such relief.