#### Denis O’Connell, Appellant, *against*John Kelly *et al.,*Respondents.

(Decided February 3d, 1890.)

An action will not lie on an undertaking given by defendant in replevin for a return of the goods, where it is not alleged or shown that the sureties justified, or that the undertaking was allowed by the court, or that the property was delivered to the defendant in consequence of the giving of the undertaking.

Appeal from a judgment of this court entered upon the dismissal of a complaint at the trial.

The action was brought on defendant’s counter-undertaking in an action for recovery of possession of personal property. On trial by the court, a jury having been waived, the following opinion was delivered.

Bookstaver, J. The complaint does not aver that the sureties on the undertaking justified, nor is it alleged that the undertaking was allowed by the court; and there was no proof on the trial that either of these things was done. Nor did it appear that the property was delivered to the defendant in consequence of the giving of the undertaking or that the sheriff delivered the undertaking to the plaintiff’s assignor, in pursuance of the provisions of the Code.

The object of the undertaking sued upon was the return of a chattel to the defendant in that action. In order to accomplish this three things were necessary: (1) the giving of the undertaking; (2) notice of justification of sureties; and (3) the justification of sureties (Code Civ. Pro. §§ 1704, 1705). If the sureties failed to justify, the sheriff was bound to deliver the chattel to the plaintiff (Code Civ. Pro. § 1706), and there is no proof that they did justify or that the property was delivered to the defendant in consequence thereof.

*514I think, therefore, there was no consideration for the undertaking ; that it never became effective; that the sureties on it never became liable *(Hemingway*v. *Poucher,*98 N. Y. 281); and that the sheriff had no authority to deliver it to the plaintiff under section 1708 of the Code. This case is not analogous to *Decker*v. *Anderson*(39 Barb. 346), for that was a plaintiff’s undertaking on claim and delivery, and the sheriff of necessity acted . upon it in taking the property from the defendant, and, therefore, in that case, there was a consideration for the undertaking.

The complaint should be dismissed, with costs.

From the judgment entered on this decision plaintiff appealed.

*Elbert*Crandall, for appellant.

The claim to a return of the chattel, and that the undertaking is given pursuant to a statute, is a sufficient consideration *(Slack*v. Heath, 4 E. D. Smith 95 ; *Harrison*v. Utley, 6 Hun 565). The defendants are estopped by the recitals in the undertaking from disputing its validity. The undertaking recites that the defendant in the replevin suit requires a return of the chattel replevied to him, and has served upon the sheriff of the City and County of New York the notice required by Code Civ. Pro. § 1704. That the statutory proceedings were not thereafter followed in no way affects the sureties’ liability upon the undertaking *(Harrison*v. Utley, 6 Hun 565; *Harrison*v. Wilkin, 69 N. Y. 412). The parties to the action may waive the formalities of the statutory proceedings *(Harrison*v. Wilkin, 69 N. Y. 412). It was error to hold that justification of the sureties and allowance of the undertaking were essential to the validity of the undertaking or necessary allegations in the complaint. The sureties’ failure to justify upon a plaintiff’s undertaking, is no defense to an action upon the undertaking, because the sheriff is required to take the property upon the faith of the undertaking *(Decker*v. *Anderson,*39 Barb. 346 ; *Gould*v. *Manning,*90 N. Y. 476-481). And, likewise, in regard to the *515defendant’s undertaking to reclaim chattels, the sheriff is bound to retain the property upon the faith of the undertaking; hence, the failure of sureties to justify, and failure to procure allowance of the undertaking, in no wav impairs or affects its validity, and presents no defense to the action *(Decker*v. Anderson, 39 Barb. 346; *Gould,*v. Manning, 90 N. Y. 476-481). The case of *Hemingway*v. *Poucher*(98 N. Y.281), is not an authority in support of the decision in this case, for that was an action upon an undertaking given upon appeal, where the statute expressly declares that “ the effect of a failure so to justify and to procure an allowance, is the same as if the undertaking had not been given” *(Gould*v. Manning, 90 N. Y. 481).

*Wm. F.*Browne, for respondents.

The object of the undertaking sued upon was the return of the chattel to the defendant in the replevin suit(Code Civ. Pro. § 1704). To accomplish that object three things were necessary, and should have been alleged and proved: (1), the giving of the undertaking; (2), notice of the justification of the sureties ; (3), the justification of the sureties (Code Civ. Pro. § § 1704, 1705). Until the justification of the sureties, the undertaking was inoperative. If, for any reason, the sureties failed to justify, the sheriff could not deliver the chattel to defendant, but was bound immediately to deliver the chattel to plaintiff(Code Civ. Pro. § 1706).

Not having effected its object, viz. : the return of the chattel, the undertaking was without consideration, and invalid *(Hemingway*v. Poucher, 98 N. Y. 281 ; *Barnett*v. Selling, 70 N. Y. 492, 496, 497).

The undertaking was never legally delivered to the plaintiff in the replevin suit. Code Civ. Pro. § 1708 prescribes that the sheriff, when he delivers a chattel to either party, must deliver to the adverse party the undertaking given. The cases, such as *Decker*v. *Anderson*(39 Barb. 346), which hold that failure to justify is no defense to an action against the sureties, were cases where the undertaking was given by plaintiff, and have no bearing on this case, for the reason *516that plaintiff’s undertaking in replevin accomplishes its purpose without justification (Code Civ. Pro. § 1706). Without justification of the sureties, plaintiff suffered no damage, as the sheriff could not deliver the chattel to defendant without justification (Code Civ. Pro. § 1706).

Larremore, Ch. J.

The judgment dismissing the complaint should be affirmed, and I concur in the reasons for such dismissal given by the learned judge in his opinion at Special Term. The clear intention of the Code is to put upon a defendant seeking the re-delivery of a chattel 'which has been replevied, the affirmative duty of having the sureties upon his undertaking justify, and of procuring the allowance of such undertaking( § § 1704, 1705, 1706). Section 1706 specifically provides that, if defendant makes default in procuring the allowance of the undertaking, the sheriff must immediately deliver the chattel to the plaintiff. It is not alleged in the pleadings, or shown by the proofs, actually what was done by the sheriff with the chattel in question. Certainly it cannot be presumed that he delivered it to the defendant in the replevin suit, because it is not shown that said defendant entitled himself to such delivery by procuring the allowance of the undertaking. If there be any presumption at all to be entertained, it would be that the sheriff performed his legal duty under all the facts that appear, that is, that he delivered the .chattel to the plaintiff in replevin. I agree with tlie learned trial judge that there was no consideration for the undertaking; that it never became operative ; that the sheriff never had authority to deliver it to the plaintiff in the replevin suit under section 1708; and that the sureties named in it never incurred any liability.

The judgment should be affirmed, with costs.

Bischoee, J., concurred.

Judgment affirmed, with costs.