#### Carr and Hobson (Limited), App’lt, *v.*Anna J. Sterling, Resp’t.1

*(Court of Appeals, Second Division,*

*Filed June 18, 1889.)*

1. Undertaking—When construed as an agreement, no particular FORM NECESSARY.

In an action on an undertaking executed by defendant to secure the release of one II. from an order of arrest, plaintiff claimed the right to recover upon it as an agreement and not as a statutory undertaking. The action in which the order of arrest was issued was brought in the superior court of New York. The undertaking was entitled in the supreme court, and it is claimed that it is void for that reason. *Held,*that as an agreement between the parties no particular form was necessary; that it was not necessary that it should be entitled; that the words “ supreme court” at the head of the undertaking may be treated as surplusage.

3. Same—Practice—When judgment not void until set aside.

A failure to give notice of a motion to amend the complaint is an irregularity merely, which may be corrected upon motion. It would not operate to render the judgment void, but it would stand as a valid judgment until set aside or amended. The defendant was asked if she would go on the bond, and assented. The bond was afterwards prepared, and she signed it. *522Her willingness to go on the bond was conveyed to the plaintiff’s attoi'ncy in the action in which it was given, and his consent to accept her conveyed back to defendant by the same persons. *Held,*sufficient to establish an agreement.

3. Same—Surety—When not discharged prom liability.

Where a surety on an undertaking given to secure the release of a defendant from an order of arrest issued in a civil action, requests the plaintiff not to issue an execution against the property or person of such defendant, and in consequence of such request there is such a delay in issuing the execution that at the time-it is issued the defendant is found to have departed from the county, no loches can be predicated upon the delay so as to discharge the surety from liability.

Appeal from a judgment of the superior court of the city of New York, overruling exceptions taken at the trial, and directing a judgment dismissing the complaint upon . the merits.

*Norman T. M. Melliss,*for app’lt; *L. Laflin Kellogg,*for resp’t.

1

 Reversing, 53 Supr. Ct., 255.

Haight, J.

This action was brought upon an undertaking executed by the defendant, to secure the release of one William W. Holt, from an order of arrest issued in a civil action. The undertaking was in the sum of $7,500, and provided that Holt “ shall at all times render himself amenable to any mandate which may be issued to enforce final judgment against him in the action ” Final judgment was entered therein on the *27th.*day of May, 1882, and thereafter, and on the 29th day of November, 1882, an execution was issued against the property of the judgment debtor. Such execution having been returned unsatisfied, an execution against the body of the said judgment debtor was is- . sued on the Yth day of December, 1883, and was returned by the sheriff, with the endorsement thereon: “defendant not found.” Thereafter, this action was brought upon the undertaking.

Upon the trial, the court dismissed the complaint and ordered the exceptions to be heard in the first instance at the general term, and in the meantime suspended judgment.

The complaint in this action alleges that the undertaking was executed by the defendant and accepted by the plaintiff, under an agreement that Holt should be released and discharged from the arrest, the defendant agreeing to duly perform and abide by the terms and conditions of the undertaking. That pursuant to such agreement, and in consideration thereof, the plaintiff did discharge and release Holt from custody under the order of arrest.

The undertaking had but one surety, and did not conform to the provisions of the Code, and the plaintiff does not claim the right to recover on it as a statutory undertaking, but does claim the right to recover upon it as an agreement, which is good at common law.

*523This action in which the order of arrest was issued, was brought in the superior court of the city of Hew York. The undertaking was entitled in the supreme court. It is-now claimed that it is void because it is not entitled in the court, in which the action was brought. Without stopping to consider the effect that this would have upon a statutory undertaking, we are of the opinion that inasmuch as it is founded upon an agreement, and is sought to be maintained by virtue of the agreement, the defect, if such it be, in a statutory undertaking, is not available in this action. There is no obscurity in the agreement in reference to the order of arrest that Holt was to be released from, or the obligation that the defendant undertook upon his being discharged.

Treating it as an agreement between the parties, no particular form was necessary. It was sufficient if the minds of the parties met and assented to its terms. As an agreement, it was not necessary that it should be entitled, and the words “supreme court” at the head thereof have no significance, and may be properly treated as surplusage.

The original complaint in the action in which the order of arrest was issued demanded judgment for $7,000 and interest. The defendant did not appear in the action. Subsequently, on an application to the special term, the complaint was amended *ex parte*so as to demand judgment for $13,618.66, with interest from April 3, 1882, with costs, etc. Thereafter judgment was entered for that amount. It is claimed that this was in violation of section 1207 of the Code of Civil Procedure, which provides that “where there is no answer, the judgment shall not be more favorable to the plaintiff than that demanded in the complaint.”' If the judgment is void, then it would not be within the provisions of the agreement, under the terms of which Holt, was to render himself amenable to any mandate which may be issued to enforce a final judgment against him in the action. *Mittnacht v. Kellermann,*105 N. Y., 468; 7 N. Y. State Rep., 870.

But is it a void judgment? The court had jurisdiction of the parties and the subject matter. This was obtained upon the service of the summons and complaint. The amended complaint in the action demanded judgment for the amount for which it was entered. The judgment therefore conforms to to the provisions of the section of the Code referred to. A party appearing in an action is entitled to notice of the motions subsequently made to the court, but a party not having appeared would not ordinarily be entitled to notice of motion. *Peck*v. *New York and New Jersey Railroad Company,*85 N. Y., 246.

But if it should be held that Holt was entitled to notice *524of the motion to amend the complaint, the failure to give such notice would be an irregularity, merely, which could .be corrected upon motion. It would not operate to render the judgment void, but it would stand as a valid judgment of the court until set aside or amended. *Jewett*v. *Crane,*35 Barb., 208; *Bensel*v. *Lynch,*44 N. Y., 162-165.

The cases of *Briggs*v. *Oliver*(68 N. Y., 336) and *Argall*v. *Pitts*(78 id., 243) are not in conflict with this view.

No greater amount can be recovered of her than that stipulated in the undertaking or agreement. And whether she is entitled to be credited with the payments by Holt after the action was brought, is not now before us for consideration.

It is contended that there was no common law undertaking or agreement proved. The evidence upon this branch of the case is undisputed, and is substantially as follows: The deputy sheriff, McConigle, testified that he arrested Holt, and immediately afterwards told him the amount of bail that was required, and that afterwards they went and saw Mrs. Sterling, the defendant in this action; •that Holt asked her if she Would go on a bond, and she .said she would if she could be of any use to him; that they then went to Mr. Logan’s house, the attorney for the plaintiff in that action, had a talk with him, and the bond was partially filled out; they then returned to Mrs. Sterling, and she signed the bond.

She wanted to know if she would be sufficient, and was told that Mr. Logan said yes, that he would accept her; that .they then returned to Logan’s house, who approved the bond, and thereupon the sheriff discharged Holt from arrest. It is true that the defendant did not see the plaintiff or its attorney before signing the bond, but her willingness to sign, was conveyed to the plaintiff’s attorney through Holt and the deputy sheriff, and his consent to accept her, was ! conveyed back to her by the same persons. The undertaking was prepared, and she signed it. This appears to be sufficient to establish an agreement. *Toles*v. *Adee,*84 N. Y., 222; S. C., 91 id., 562; *Goodwin*v. *Bunzl,*102 id., 224; 1 N. Y. State Rep., 405.

Again it is contended that the plaintiff has been guilty of loches, which, as a matter of law, would discharge the defendant as surety. As we have seen, the judgment was entered on the 27th day of May, 1882, and an execution against the property was issued on the 29th day of November, 1882, and that against the body on the 7th day of December, 1883, more than a year and a half afterwards. It appears that Holt remained in the. vicinity for a long time after the entry of judgment, and had the execution against his body been issued, he could have been taken thereon, but at the time that it was issued "he had departed from the *525county and could not be found. This undoubtedly amounts to loches, which would discharge the defendant from liability. *Toles*v. *Adee,*91 N. Y., 571; *Craig*v. *Parkis,*40 id., 181; *Northern Insurance Co.*v. *Wright,*76 id., 445; *McMurray*v. *Noyes,*72 id., 523.

But it is claimed that these loches were excused by the defendant, and this in our judgment becomes the important question in the case.

Mr. Logan, the plaintiff’s attorney, testified that Mrs. Sterling, the defendant, came to his office and stated that she felt a considerable interest in Mr. Holt. “She said that she requested me to use my influence to help Mr. Holt all that I could, and she spoke to me in regard to getting Mr. Holt back with Carr & Hobson, and I told her I would use my endeavors to do so. She told me she hoped I would not press Mr. Holt, or pursue him in that matter. She said that she thought Mr. Holt had fallen; that he had a very nice family. I think she said she thought he had fallen; I don’t remember her exact words, but substantially “ from grace,” I think by accident, and she hoped very much I would not press him or do anything to injure him in this case any further than absolutely necessary, and not to do anything that I could avoid doing.” He further testified that he did use his endeavors to have Mr. Holt return to Carr & Hobson, and that he did not issue the executions upon the judgment sooner than he did because he desired to do all that he could in the matter for Holt, and that he had been beseeched by the defendant not to do anything, but to do all that he could for him, and not press or injure him on that account.

It will be observed that the defendant requested the plaintiff’s attorney not to press or pursue Holt in the matter. The only way in which he could be pressed or pursued in that action was by the issuing of the executions against his property and person. The request was, therefore, in effect, not to issue the executions, and it appears to have been so understood by the plaintiff’s attorney, for he testified that the delay in issuing the execution was on account of the request, of the defendant.. We are of the opinion that this amounted to an excuse for the loches complained of.

In the case of *Toles*v. *Adee*(91 N. Y., 562-572), a similar request had been made by the surety, but subsequently he died, and the court in that case held that it was but a mere notice, which could be terminated, and could not be deemed to continue after his death, when new rights intervened and his liability fell on the shoulders of his executors. In that case it was further held that there were loches, in not issuing the executions with due diligence after the death of the surety, which operated to discharge his executors from liability. See. also, same case, 84 N. Y., 222.

*526It consequently appears to us that a question of fact was presented, which should have been submitted to the jury.

For these reasons the judgment is reversed and a new trial ordered, with costs to abide event.