Culliford v. Gadd

22 N.Y.S. 539

• Court: The Superior Court of the City of New York and Buffalo
• Decided: March 6, 1893
• Status: Published

Opinion

PER CÍTRIAM.

As the respondent failed to except to sureties within the time allowed, the undertaking became perfect for the purposes of the appeal. The reason advanced for the plaintiff’s failure to except to the sureties does not satisfy us that he should now be accorded an opportunity to examine them. If the circumstances of the sureties are, at any time after the execution of the undertaking, precarious, section 1308, Code Civil Proc.,¹ suggests a way for relief. We believe the order of the special term should be affirmed, without costs.

1 Code Civil Proc. § 1308, provides for an order, in the court in which an appeal is pending, requiring appellant to file a new undertaking, where, since the execution of the undertaking, the sureties have become insolvent, or their circumstances precarious.