#### Denis O’Connell, App’lt, *v.*John Kelly *et*al., Resp’ts.

*(New York Common Pleas, General Term,*

*Filed February 3, 1890.)*

Replevin—Undertaking by defendant—Not effectual unless sureties justify.

In an action upon an undertaking given by a defendant in a replevin action, the complaint did not allege that the sureties justified, that the undertaking was allowed by the court, nor was it stated what the sheriff did with the chattel. *Held,*that in the absence of justification there was no consideration for the undertaking; it never became operative, and the sheriff had no authority to deliver it to the plaintiff; that the presumption would be that the sheriff did his duty and delivered the chattel to the plaintiff.

Appeal from judgment dismissing the complaint.

Action upon an undertaking given by James Kelly in an action against him by plaintiff’s assignor to replevin a horse.

The complaint set forth the replevin action, the giving of said undertaking for the return of the horse, with notice of justification ; the retention of the horse "by the sheriff to be returned to James Kelly; the recovery of judgment and return of execution unsatisfied and the assignment to plaintiff of the undertaking and judgment. The complaint does not state that the sureties justified, that the undertaking was approved or what further disposition was made of the horse.

Defendants admitted the execution of the undertaking, but denied that there was any consideration therefor; alleged that it was invalid in law, and denied the other allegations of the complaint.

Ko proof was given that the sureties justified, nor did the undertaking show any justification.

The court on dismissing the complaint delivered the following opinion:

*492Bookstaver,' 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 were 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: 1st. The giving of the undertaking ; 2d, Notice of justification of sureties, and 3d, The justification of sureties (Code of Civ. Pro., §§ 1704, 1705). If the sureties failed to justify, the sheriff was bound to deliver the chattel to the plaintiff (Code of Civ. Pro., § 1706), and there is no proof that they did justify or that the property was delivered to the defendant in consequence thereof.

I think, therefore, there was no consideration for the undertaking, that it never became effective, that the sureties on it never became liable, *Hemmingway*v. Poucher, 98 N. Y., 281, and that the sheriff had no authority to deliver it to the plaintiff under § 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.

*Elbert Orandell,*for app’lt; *William F.*Browne, for resp’t.

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 redelivery 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. Sections 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 the 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 *493§ 1708; and that the sureties' named in it never incurred any liability.

The judgment should be affirmed, with costs.

Bischoff, J., concurs.