#### Frederick E. Greve, Respondent, *v.*Louis Wallowitz et al., Appellants.

(Supreme Court, Kings Special Term,

September, 1898.)

Greater New York — Removal by defendant of case from Municipal to County Court — Second undertaking — Arbitrary decision of justice, as to sufficiency, reviewable.

An action brought in a Municipal Court of the Greater New York to recover chattels of a value exceeding $250 may, under the new charter (Laws of 1897, chap. 378, § 1366), be removed by the defendant, as • matter of right, to the County Court upon the filing of the statutory undertaking with one sufficient surety; and where the justice deems the undertaking, timely offered, insufficient, he may properly permit another undertaking to be furnished.

Assuming the right of the justice to pass on the sufficiency of the sureties, a right which the statute does not confer, his action in the premises must not bé arbitrary or capricious, and, when it is, is subject to review.

Appeal from a judgment of a Municipal Court in the borough of Brooklyn.

A. B. Schleimer, for appellants.

A. A. Joseph, for respondent.

Hirschberg, J.

This action is brought in a Municipal Court in the borough of Brooklyn to replevin articles of personal property valued at $437.» By section 1366 of the charter of Rew York, the defendant was entitled to an order removing the case to the County Court, upon filing-an undertaking with the clerk of the Municipal Court, in a sum fixed by the justice, not exceeding double such value, with one or more sureties, to the effect that the defendant will pay to the plaintiff the amount of any judgment that may be recovered’ against him in the higher court. The defendant made timely application for such removal, and offered an undertaking, which was found insufficient in form, and with insufficient sureties. An opportunity was afforded the defendant, without objection, to furnish another undertaking which he did with new sureties, but *602which the justice also rejected as insufficient. An inquest was thereupon taken, and judgment rendered in favor of the plaintiff.

The plaintiff on this appeal presents no objection to the undertaking, excepting as to the power of the justice to permit the tender of a second undertaking, and as to the sufficiency of the sureties. I have no doubt of the power of the justice. Eo objection to his course was made by the plaintiff at the time, and no authority is cited showing its impropriety. The undertaking complied with the requirements, of the statute as to the sufficiency of the sureties, because the plaintiff, admits in his brief that one. of the sureties was sufficient, and the statute requires but one. The words “or more,” are inserted to enable a defendant to furnish more than one surety where he is unable to procure one who can qualify alone in the amount required. The undertaking was clearly sufficient so far as the. sureties are concerned. ' The justice did not fix the sum as required, but the undertaking was abundantly good in an amount twice the Value of the property. The surety which the plaintiff admits was sufficient testified tó equities amounting to $9,000 in the real estate 968 Bedford avenue and 219-221 Skillway street. The other surety testified that he was free . from., debt and that he owned stocks of goods, worth several thousands of dollars, in various stores, which he specifically designated, giving the amount in each, and also that he had $500 on deposit in the Bowery Savings Bank. There was nothing in opposition to the oaths of these sureties. If' there was any other defect in the undertaking it is not apparent and has not been suggested on this appeal. Eo authority is cited.for the respondent’s proposition-that the only remedy is to mandamus the justice. The provision requiring him to make the order of removal is mandatory and the inquest was without jurisdiction. Tuttle v. Galligan, 23 Misc. Rep. 457; O’Connor v. Moschowitz, 48 How. Pr. 451. Assuming the right of the justice to pass on the sufficiency of the sureties, which right the statute does not confer, his action must be judicial and not arbitrary or capricious, and when as in this case' it is coneededly erroneous, .it must be subject to review.

Judgment reversed with costs, and cause remitted to court below for action upon defendant’s motion for removal.

Judgment reversed, with costs, and cause remitted to court below.