#### James Walsh, Respondent, *against*Charles Schulz, Impleaded with Edward Fitzpatrick *et*al., Appellant.

(Decided March 13th, 1885).

The exoneration of bail is governed by the law in force when the application for exoneration is made, not by the law existing at the time the undertaking was given.

The right of bail to be exonerated upon the death of the principal is limited, under sections 600 and 601 of the Code of Civil .Procedure, to cases of the death of the principal before the expiration of the time to answer in the action against the bail.

Appeal from an order of the General Term of the City Court of New York affirming an order of that court denying a motion to exonerate bail.

In a previous action in this court, brought by the plaintiff James Walsh against Edward Fitzpatrick, one of the defendants in this action, the latter was arrested on the 5th day of June, 1877, under an order of arrest obtained by plaintiff against him in the action, and gave bail under the provisions of the Code of Civil Procedure then in force, the other defendants in this action, Charles Schulz and James Fitzgerald, becoming his sureties. On January 6th, 1881, judgment was recovered and entered in that action against Fitzpatrick, and execution issued against his property, which was returned unsatisfied; and execution thereafter issued against his person was returned, on January 26th, 1881, not found.

This action was thereupon brought in. the City Court of New York by plaintiff against Fitzpatrick and his sureties upon their undertaking. The summons was served upon defendant Schulz on January 28th, 1881, and his time to answer expired on February 3d, 1881, but no answer was served. The summons was not served upon Fitzpatrick, and, on February 18th, 1881, he died at Washington, D. C. On February 28th, 1881, an order was entered in the action *133continuing the action as against defendants Schulz and Fitzgerald, and judgment in the action for default of an answer was entered against them. Subsequently, a motion by defendant Schulz to open the default as against him, and for leave to answer the complaint, was granted (see 12 Daly 103); and an answer was served by him setting up, as a defense, the death of Fitzpatrick; and he then moved, in the action, to be exonerated as bail, on the ground of the death of Iris principal. Upon this motion, at the Special Term of the City Court, the opinion which is referred to in the following opinion of Charles P. Daly, Ch. J., was rendered by McAdam, Ch. J., as follows:

“ Section 191 of the old Code of Procedure re-enacted the cases for exonerating bail provided for in the Revised Statutes, as amended by the Act of 1845 (L. 1845 c. 231; *Levy*v. *Nicholas,*19 Abb. Pr. 282, and 1 Robt. 614). Sections 600 and 601 of the present Code of Civil Procedure were substituted for the provisions of law previously in force on the same subject. The determination of the present application depends therefore upon the construction to be placed on those sections. Section 600 provides that in certain specified cases the court may, ‘before the expiration of the time to answer,’ and upon notice to the adverse party, make such an order for the relief of the bail, as justice requires. Section 601 provides that, except in an action to recover a chattel, the bail must be exonerated when either of the following events occur’, ‘ before the expiration of the time to answer ’ in an action against them: I. The death of the original defendant. II. His legal discharge from the obligation to render himself amenable . . . III. His surrender to the sheriff of the county, etc. The same section also provides that ‘where either event occurs after the commencement of the action against the bail, the court may, in its discretion, impose the payment of the plaintiff’s costs and expenses incurred after the return of the execution against the person, as a condition of allowing the exoneration.’ The first portion of section 601, therefore, enumerates the events in which the discharge must be granted, one at *134least of which must occur 1 before the expiration of the time to answer,’ and the second portion of the same section, interpreted in harmony with it, is, by necessary implication, made to read, where either event occurs after the commencement of the action against the bail (and before the expiration of the time to answer), the court may, in its discretion, impose thé payment of costs,’ etc. This is in accord with the rule of interpretation of statutes which requires that ah the parts must be consonant to each other—that which follows with what went before—(Potter’s Dwarris on Statutes, 128); and is also in harmony with the practice which prevails under the Revised Statutes, of requiring the bail, where they applied for exoneration after suit brought, to pay the costs of the action. That tins is the proper construction is evidenced by the balance of the section, which reads, ‘ and the court may, by an order made on notice to the adverse party, grant such further time as it deems just, after answer, for the surrender of the original defendant. In that case, his surrender within the time so granted has the same effect as if it had been made before answer.’ The provisions of the Code last referred to demonstrate that 1 after answer ’ the surrender of the original defendant is the only ground upon which the bail may be exonerated, and they can be exonerated (after answer) only in cases in which the time to make the surrender has been extended by order of the court. This provision gives the court a discretion to exonerate the bail at any time pending the action on surrendering the principal, but it does not give any such power or discretion in case the defendant dies or is legally discharged so that he cannot be surrendered. There may be reason for this discretion, for, according to the terms of the bail piece, the plaintiff is entitled to the body of the debtor or the money. The legal effect of the bond is that the plaintiff shall have one or the other. The penalty may be severe, but it is a risk the bail have voluntarily assumed. It would have been absurd to have inserted in the Code a provision granting time for the principal to die, or to be imprisoned upon a criminal charge, or to be otherwise legally *135discharged, because these are acts which the bail cannot ordinarily control. The surrender of the original debtor is a thing they might eventually accomplish, for the old theory was, that the bail have their principal upon a string, and may pull the string whenever they please (6 Modern, 231, 247). Later experience has shown that some debtors, like certain fish, require longer and stronger linos and efforts than others to bring them under proper control, and hence the provision in regard to granting time to the bail to make every honest effort to recapture and surrender their principal was inserted. As the Code contains the only authority for exonerating bail, they must bring themselves within its provisions, or the application for exoneration must be denied. Under the Revised Statutes the limitation of eight days after the return of a *ca. sa.*(2 R. S. 383 § 34) for the exoneration of bail wa,s not only regarded as a statute of limitations, but a period fixed by statute within which only it could be done (Graham’s Pract. 2d ed. 434; 2 Paine *&*Duer’s Pract. 31, 32; 1 Comyn’s Dig., title Bail, R. 5; *Rawlinson*v. Gunston, 6 Term 284). The court has nó more power to extend the time than it has to extend the statute of limitations or the time to appeal. There are many actions and rights given by statute, provided they are brought or asserted within a limited time, which the courts have no power to allow afterwards (for example,, see *Jackson*v. *Wiseburn,*5 Wend. 136; *Caldwell*v. *Mayor,*9 Paige 575; *Bank of Monroe*v. *Widmer,*11 Paige 529; *Wait*v. *Van Allen,*22 N. Y. 321; *Humphrey*v. *Chamberlain,*11 N. Y. 275; *Grout*v. *Cooper,*9 Hun 326; *Jackson*v. *Wood,*24 Wend. 443; *Selover*v. *Coe,*63 N. Y. 438; *National State Bank*v. *Boylan, 2*Abb. N. C. 216). It is practically the same in regard to the right of bail to be exonerated. Prior to the statute the rule was, if the principal died at any time before the return of the *ca. sa.,*the bail were discharged; but if he died after the *ca. sa.*was returnable, although before the return was filed, the bail were charged and the court could not relieve them (2 Paine & Duer’s Pract. 31). The Revised Statutes relaxed this rule by allowing the bail *136eight clays after suit brought within which to seek exoneration, and now the Code extends the time to apply for exoneration in case the principal dies ‘ before the time to answer expires,’ but not afterwards.

“ The bail in the present case answered without applying for exoneration, and the principal died after the time for answering .herein had expired. According to the Code, as I have interpreted it, the application was not made in time, the statute has run against the right to apply for exoneration, there is no power in the court to extend the time, and the application to exonerate the bail must be denied.”

From the order entered upon this decision denying the motion, defendant Schulz appealed to the General Term of the City Court, which affirmed the order, for the reasons expressed in the foregoing opinion, and from that decision defendant Schulz appealed to this court.

*Charles Wehle,*for appellant.

The construction of sections 600 and 601 of the Code of Civil Procedure by the judge at Special Term limiting the time mentioned in section 601 by inserting the words “ and before the expiration of the time to answer,” is erroneous. Such limitation is not necessary, and ought not therefore to be annexed by interpretation. The legislature might well have intended, in enacting this section, to confer upon the court power to relieve the bail whenever the death of the defendant occurs pending a suit upon the bail bond. There is nothing in any part of this section showing the contrary.

The undertaking sued upon having been given under the old Code, the rights and liabilities of the bail are fixed by the old Code, and not by section 601 of the new Code. There is no limitation in the provisions of the old Code as to the time within which exoneration is to be had; hence the court had power to grant the motion *(Hayes*v. Carrington, 12 Abb. Pr. 181; *Merritt*v. Thompson, 1 Hilt. 553; Baylies on Sureties, 284; Code Civ. Pro. § 3356).

Even if the time had expired, it was still within the *137power of the court to extend the time within which the bail might be exonerated (Code Civ. Pro. §§ 783, 784; *Hall*v. *Emmons,*9 Abb. N. S. 370).

*E. H.*Benn, for respondent.

The right of bail to be exonerated is purely a statutory right. Independent of the statute he could not be exonerated at all. By the Revised Statutes he was given eight days after the return of a *ca. sa.*(2 R. S. 383 § 34); and no case can be shown where, prior to the Code, if the principal died after that, the bail was exonerated. It was not only a statute of limitations, but a period was fixed by statute within which only it could be done (Graham’s Pract. 2d ed. 434; 2 Paine & Duer’s Pract. 31, 32; 1 Comyn’s Digest, title Bail, R. 5; *Rawlinson*v. Gunston, 6 Term 284). By the present Code the time within which the bail may be exonerated is also fixed with precision. By that (§ 601), he may be exonerated if the principal dies before the time of the bail to answer in the suit brought against him expires. Just so much time is given him and no more, and the court has no more power to extend it than it has to extend the Statute of Limitations. In all cases where the time within which an act may be done is given or prescribed by statute, that time cannot be extended or enlarged by the court, or rather the court cannot authorize the act to be done after that time (See *Jackson*v. *Wiseburn,*5 Wend. 136; *Cadwell*v. *Mayor,*5 Paige 572; *Bank of Monroe*v. *Widner,*11 Paige 529; *Wait*v. *Van Allen,*22 N. Y. 321, 322; *Humphrey*v. *Chamberlain,*11 N. Y. 275). In an action so brought after the time given by statute it is not necessary even to plead the statute *(Grout v. Cooper,*9 Hun 326; *Jackson*v. *Wood,*24 Wend. 443; *Selover*v. *Coe,*63 N. Y. 438; *National State Bank*v. *Boylan,*2 Abb. N. C. 216). It is precisely the same in regard to the right of bail to be exonerated. The statute gives them the right, in case the principal dies before the time to answer expires, but not afterwards. The right o£ exoneration is not a part of the original contract of the bail, and may be limited or extended by the legislature. *138after the contract of the bail has been made. The contract of the bail, under section 187 of the old Code, was that the principal should at all times render himself amenable to the process of the court. The privilege or right to be relieved from his obligation may be limited, enlarged, or entirely taken away without impairing the contract, and even if it should materially affect it, that would be no legal objection to it *(Homer*v. Lyman, 4 Keyes 237; *People*v. *Vilas,*36 N. Y. 459; *White*v. *Blake,*22 Wend. 612; *Gale*v. *Wells,*7 How. Pr. 191; *Matter of*Palmer, 40 N. Y. 561; *Morse*v. *Gould,*11 N. Y. 281; *Butler*v. *Palmer,*1 Hill 324). In reality the new code did not change the law at all. Before the last code it was a doubtful question in the courts how section 191 of the former code should be read *(Hayes*v. Berryman, 21 How. Pr. 143, 147; *S. C.*12 Abb. Pr. 179).

In view of the obscurity or uncertainty of the language of section 191 of the Code, and not to change the law, the legislature by section 601 of the new Code gave it a legislative construction and put it in other words, by which what was before obscure and uncertain was made plain and clear (see Commissioners’ notes to § 601). Such an alteration or change of phraseology in an amendment, or in a substituted section of a statute, particularly when doubts have arisen in regard to it, is not, according to the rules for the construction of statutes, to be deemed an alteration or change of the statute, but simply a legislative construction of it *(People ex rel. West*v. *Davenport,*91 N. Y. 575, 591, 592; *Matter of Brown,*21 Wend. 316; *Lynch*v. *Clark,*1 Sandf. Ch. 562, 660).

Charles P. Daly, Chief Justice.

It is not the Code as it existed when the undertaking was entered into, but the Code as it was when the application was made to exonerate the bail, that is to govern, and the interpretation put upon the amended sections 600 and 601 by Judge McAdam is so obvious that I have nothing to add. If the legislature, as the appellant argues, in these amended sec*139tions, intended that the courts should have power to relieve the bail whenever the death of the defendant occurs, pending the suit against the bail, as was the case under section 191 of the former Code, it is presumed that they would have left the provision as it was, it being the part of wisdom to leave what is well enough alone; but they have recast the previous provision, and limited the right of the bail to be exonerated upon the death of the defendant to the case of Iris death before the expiration of the time to answer in the action brought against the bail, and if any other construction is to be put upon the plain language of sections 600 and 601 that responsibility must be assumed by the tribunal of final resort.

The order appealed from should be affirmed.

Larremore and Van Hoesen, JJ., concurred.

Order affirmed.