#### Reuben H. Webb, Respondent, v. Bertha Hecox et al., Appellants.

(County Court, Madison County,

April, 1899.)

1. Action, in justice’s court, to recover a chattel — Jurisdiction of justice.

Section 2919 of the Code of Civil Procedure, declaring that an action to recover a chattel can be tried before a justice of the peace of the county in which the chattel is found, controls the question of jurisdiction and the provisions of section 2869 of said Code are not in point.

3. Same — Failure of plaintiff’s sureties to justify — Wrongful delivery by constable.

Where, after the defendants in such an action have excepted to the sureties on the plaintiff’s undertaking, the sureties fail to justify, the *170constable must deliver the property to the defendants, and his delivery of it to the plaintiff makes him personally liable if the defendants prevail.

3., Same — Waiver of justification.

Where, however, the plaintiff presents his sureties on the return day and offers them for examination as to their sufficiency and the defendants’ attorney remains silent and no justification takes place and ■ the plaintiff succeeds on the merits, the failure to justify is not a sufficient ground for the reversal of a judgment in favor of the plaintiff.

Appeal from a judgment rendered in a Justice’s Court.

M. E. Milliken, for appellants.

D. L. Atkyns, for respondent.

Smith, J.

This is an appeal from a judgment rendered in Justice’s Court in the town of Georgetown, this county.

The action was brought to recover the. possession of a certain horse, which the plaintiff' claims the defendants wrongfully took and detained

All the parties were residents of the county of Chenango.

It appears by the officer’s return that the summons, affidavit, requisition and undertaking were served on the defendant Eugene Hecox in the town of Hamilton, this county; and also., on William J. Henry, the person in whose possession the property was found; but that no service was made on the defendant Bertha Hecox, as she could not be found in this county.

The defendants served exceptions to the sureties to the undertaking given by thé plaintiff, and the officer delivered the property replevied over to the plaintiff.

On the return ‘day the. defendants appeared by counsel specially before-the justice and .objected to the jurisdiction of the court upon various grounds, among which were the following:

That the action was not brought in the town in which either of the parties reside, or in an adjoining town; and that the plaintiff was not in the town in which the action was brought at the time it was commenced.

The objections were overruled, whereupon the counsel for the defendants withdrew, and the defendants made no other appear*171anee in the action. Thereupon the plaintiff proceeded to prove the cause of action alleged in the complaint.

From the evidence it appears that the defendant Eugene Hecox, without right, took, the h.orse from the plaintiff’s possession; and I think the evidence sufficient to warrant judgment in plaintiff’s favor for its possession.

On the return of the summons, and in the presence of the defendants’ counsel, the plaintiff in open court presented the sureties to the undertaking and offered them for examination as to their sufficiency. The defendants’ counsel remained silent, did not examine or offer to examine the sureties, and they did not then justify.

At the time of the execution of the undertaking they justified in the usual way, and the undertaking was executed in due form, and approved by the justice.

After hearing the plaintiff’s evidence the justice rendered judgment ps follows: *“*That the plaintiff recover of the defendants the possession of the property, or the sum of $100 in case a delivery cannot be had, together with $12 costs; ” from which the defendants appealed to this court.

It is contended by the defendants that the justice acquired no jurisdiction for the.reason that the action was not brought in the town where one of the parties reside, or in an adjoining town.

Subdivision 2 of section 2869 of the Code of Civil Procedure provides, that where the plaintiff is not a resident of the county the action must be brought in the town where the defendant resides, or in an adjoining town thereto. This subdivision applies to an action brought by a nonresident plaintiff against a resident defendant, and has no application to this case for the reason the defendants were nonresidents.

Subdivision 3 of the same section provides that: *“*Where the defendant is a non-resident of the' county, it may be brought 'before a justice of the tewn or city, in which he is at the time of the com-' mencement of the action.”

The defendants contend that this action- was brought in violation of this subdivision, for'the reason the summons was issued from the town of Georgetown where neither of the defendants were at the time, and it was served on the defendant Eugene Hecpx in the town of Hamilton, a town not adjoining the town of Georgetown; and that, therefore, the court did not acquire jurisdiction over him.

*172The defendants are wrong in their contention. It has been held that the first four subdivisions of the' section in question, as amended by chapter 74 of the Laws of 1893, relating to special cases, operate to enlarge- the jurisdiction of a justice of the peace, and are not dependent upon the limitations stated in the first clause, of that section. Bennett v. Weaver, 50 Hun, 111; Head’s Iron Foundry v. Sanders, 77 Hun, 432.

Subdivision 3 of the section referred to is not a provision that; a-nonresident must be sued in the court in the town in which he is at the -time the process is served upon him; the provision is *permissive,*not *compulsory j*he may be sued in such town, although the plaintiff does- not live there, nor in the adjoining town, Such subdivision is not a restriction or, a limitation of the jurisdiction of the justice; but is an addition to the jurisdiction given by the first part of the section. Slavin v. Mansfield, 77 Hun, 535.

Section 2919 of the Code of Civil Procedure was intended to, and does control the question. It provides that an action to recover a chattel can be brought-before a justice of the peace of the county in which the chattel is found; subject to certain qualifications not material to the question here under consideration.

• There, therefore, can be no doubt but that the action was properly. brought in the town of Georgetown.

It is further contended by the defendants that having excepted to the sureties it was incumbent upon the plaintiff to see that they justified on the return of the summons, and that their omission so to do affected a substantial right for which the judgment, should be reversed.

By section 2924 of the Code of Civil Procedure, it is provided that if the defendant serves a written notice excepting to the sureties, as in that section provided, the sureties *must*justify upon the return of the summons, or the plaintiff *must*give a new undertaking; and by section 2926 such justification relieves the constable from further liability.

Section 2924 of the present Code is substantially the same as’ section 210 of the former Code. Under section 210 of the former Code it was held that where sureties have been accepted it was no defense to an action against them that they failed to justify, and that an action commenced on the undertaking is a waiver of the exception. Decker v. Anderson, 39 Barb. 346., Under this decision, as well as from the section of the Code of Civil Procedure, there is no doubt of the liability of the sureties *173to the plaintiff’s bond, notwithstanding their omission to justify on being excepted to. The undertaking was accépted by the justice, and their failure to justify did not relieve them from liability; but such failure made the constable liable to the defendants for a return of the property to them, if judgment was finally rendered in their favor directing such return.. § 2926, Code Civ. Pro.; Van Duyne v. Coope, 1 Hill, 557; Decker v. Anderson, 39 Barb. 346.

After the defendants excepted to the sureties, if the plaintiff fails to procure the allowance of his undertaking, the constable *must*immediately deliver the chattel to the defendant. § 2927 of the Code.

The plaintiff’s sureties having failed to justify it was clearly the duty of the constable to deliver the property to the defendants, and by not doing so he became liable to them for all damages by them sustained. § 2928, Code Civ. Pro.

' But it was finally judicially declared that the' defendants were not entitled to the possession of the property, hence any right of action the defendants may have had against the constable by reason of his having delivered the property to the plaintiff, merged in the judgment; and until that judgment is reversed settles the question that the defendants had no interest in the property, and the intermediate possession ceases to be material. Schroeder v. Becker, 22 Week. Dig. 261.

So far as affecting the- question here involved, the examination and qualifications of the sureties, and the allowance of the undertaking upon a justification, must, under section 2926 of the Code of Civil Procedure, be the same as upon a justification of bail, as prescribed in section 580. By section 580 the bail *must*attend before the justice *and he examined*on oath on the part of the plaintiff, touching his sufficiency, in such manner as the justice in his discretion thinks proper. This section 580 corresponds with section 195 of the old Code, which provided that for the purpose of justification each of the bail shall attend before the justice and *may he*examined on oath on the part .of the plaintiff touching his sufficiency, in such manner as the justice in his discretion may think proper. Hnder this section 195 of the old Code the Court of Appeals in Ballard v. Ballard, 18 N. Y. 491, held that the party excepting is the actor in the proceeding; and no step is necessary to be taken except on his requisition, and that the benefit of an exception duly taken to sureties on appeal is waived by the failure of the respondent to attend the officer before whom notice of *174justification is given, although the sureties also fail to attend. The court also held that it is not the duty of the justice to enter upon any examination as to the sufficiency of the sureties, unless required so to do by the respondent, or some one in his behalf.

. The plaintiff’s counsel contends that under this decision it was . the duty of these defendants to proceed with the examination of the sureties to the plaintiff’s undertaking. That the .defendants were the actors, and if they desired the sureties to justify they should have seen that it was done on the return of' the summons, and, not having done so, they have waived the right to have, such justification.

I do not think the plaintiff is correct in this position. The case of Ballard v. Ballard was -decided under section 195 of the old Code, which provided that the bail *may be examined;*while section 2924 of the present Code is not permissive, but its language is mandatory. It provides that if such notice of exception is served the sureties *must justify*upon the return of the summons, or the plaintiff must then give a new undertaking. I, therefore, think the case of Ballard v. Ballard is not controlling, and that the plaintiff should have taken the initiatory steps towards justification. Hot having done so, the property should have been delivered to the defendants pending the suit; and if they had succeeded in the suit the constable would have been liable to them for any damage they sustained, occasioned by the- property having been delivered to the plaintiff and not t.o them, and the fact that the sureties attended before the justice, ready to justify, of which the defendants were notified, would not be deemed a waiver so as to relieve the constable from such liability. But, they having attended before thet justice, ready to justify, and the defendants’ counsel being thus advised, and making no request that they justify, and the trial then proceeding on the merits of the action without the objection that the sureties had-not justified, as between the parties might be said to be on the part of the defendants a waiver of such justification, and at least, does not call for a reversal of the' judgment following such trial. •

The case of Goff v. Bliss, 12 Civ. Pro. 99, citéd' by the--defendants’ counsel, is not in conflict with these ■ views. In that case, on the return of the summons, the defendant asked that the plaintiff’s sureties justify or else she give a new undertaking. To this, request the plaintiff’s counsel objected on the ground that-the -notice was insufficient. The objection was sustained. By that *175ruling the justice held that the sureties need not justify, and thereby deprived the defendant of the substantial right to ascertain the sufficiency of the plaintiff’s undertaking, and forced the defendant to the trial of the issue without an opportunity to ascertain as to the sufficiency of the sureties.

In this case the defendants had the opportunity to examine the sureties, but their counsel is silent when notified of the opportunity, and fails to object to the trial proceeding on the ground that no such justification had been had; and the action was then tried and decided on the merits.

After a careful examination of the questions presented by the return and by the counsel, I do not find any error requiring the reversal of the judgment as to the defendant Eugene Hecox; but, so far as the judgment is against the other defendant, more serious questions arise.

By section 1700 of the Code of Civil Procedure, if the chattel is found in the possession of the defendant or of his agent, the constable must forthwith replevy it by taking it into his possession, and without delay he must serve on the defendant a copy of the affidavit, requisition and undertaking, by delivering the same to him personally if he can be found within the county, or, if he cannot be so found, to his agent, if any, from whose possession the chattel is taken.

The constable’s return does not show that William J. Henry, the person in whose possession he found the property, was the *agent*of either defendant. The defendants properly objected that the return did not show that the summons, affidavit and requisition were served as required by statute, or that Henry, in whose possession the property was, was the agent of the defendants or either of them. They also raised the further objection that no undertaking was served as required by statute.

It is very doubtful if the judgment, in so far as it is a judgment *in rem,*is in any manner binding on the defendant Bertha Hecox; and, certainly, so far as it is a personal judgment against her for the costs of the suit, it is clearly erroneous. She never was servéd with the summons or any of the other papers required to be served in such an action, and never submitted to the jurisdiction of the court; and as to her the judgment must be reversed.

The judgment is in the alternative that the plaintiff recover the possession of the property, or $100 in case a delivery cannot be had. Inasmuch as the plaintiff already had the' possession, the judgment should simply have awarded the plaintiff the possession *176of the property, with such damage as he has sustained, and for the costs of the action. Hence the judgment was improper in form, and under section 3063 of the Code of Oivil Procedure, this court could modify or correct it, but inasmuch as the judgment awarding the plaintiff $100 in case a delivery cannot be had, cannot he enforced for the reason that the plaintiff already had the possession of the horse, I do not deem such correction or modification necessary.

The judgment of the Justice’s Oourt is affirmed as to the defendant Eugene Hecox, with costs; but as to the defendant Bertha Hecox, it is reversed, with costs against the plaintiff.

■ Judgment affirmed as to defendant Eugene Hecox, with costs, hut as to defendant Bertha Hecox, reversed, with costs against plaintiff.