Boessneck v. Bab

27 Misc. 379, 58 N.Y.S. 849

Opinion

Truax, J.

It was held by the General Term of this court in this department in Jewett v. Crane, 35 Barb. 208, that sureties upon an undertaking executed by the defendants on an attachment in order to procure the discharge of the attachment may be allowed for their own protection to defend an .action brought against their principal. That case was followed in Hoffman v. Steineau, 34 Hun, 239, in which case an application was made by a surety upon an undertaking in replevin for leave to prosecute ■ the action brought by his principal after the latter had abandoned' it. It was held in this last case that a surety had a right to appear in the action and prosecute the same on behalf of the plaintiff in order to protect himself from liability upon his undertaking. I cannot see why if a surety has the right to prosecute an action in order to protect himself from liability upon his undertaking, he should not have the same right to defend an action in order to protect himself from liability on the undertaking.

Motion granted.