Citation Numbers: 60 Misc. 569, 112 N.Y.S. 498
Judges: Giegerich
Filed Date: 10/15/1908
Status: Precedential
Modified Date: 1/13/2023
The sureties upon the undertaking on appeal intentionally failed to justify after being excepted to, and this application is made in their behalf, as well as on behalf of the appellant, to vacate such undertaking. Waiving for the time being all questions as to the sufficiency of the motion papers, it seems to me, after careful consideration, that the motion should be denied upon the merits. Section 1335 of the Code of Civil Procedure, so far as applicable, provides: “ It is not necessary that the undertaking should be approved; but the "attorney for the respondent may, within ten days after the service of a copy of the undertaking with notice of the filing thereof, serve upon the attorney for the appellant, a written notice that he excepts to the sufficiency of the sureties. Within ten days thereafter, the sureties, or other sureties in a new undertaking to the same effect, must justify before the court below, or a judge thereof, or a referee appointed by the same, or a county judge. At least five days’ notice of the justification must be given. * * * The effect of a failure so to justify and procure an allowance is the same as if the undertaking had not been given.” Under these provisions the respond
Motion denied, without costs.