Overill v. Durkee

2 Abb. Pr. 383, 12 How. Pr. 94

• Court: The Superior Court of New York City
• Decided: January 15, 1856
• Status: Published

Opinion

SlossoN, J.

By section 204 of the Code, a motion to vacate the order of arrest must be made, if at all, “ before the justification of bail.”

The defendant is in time if he makes his motion before the bail are actually perfected. The bail became perfect, if not excepted to by the plaintiff within ten days after receiving from the sheriff a copy of the undertaking, and if that period expires, and the defendant has given no notice of motion to vacate the order of arrest, he is then too late. (Code, § 192.)

If the plaintiff gives notice of exception to the bail, they become perfect by actual justification and the motion to vacate the arrest is in time at any period before such justification.

The reason of the rule is that the defendant by permitting the bail to become perfect in the one case, and by actually perfecting them in the other, without in either taking the necessary steps to procure the order of arrest to be vacated before the bail become perfect, admits that the arrest was regular, and on sufficient ground. (Lewis v. Truesdale, 3 Sand., 706 ; Wilmerding v. Moon, 1 Duer, 645.)

In the present instance the plaintiff excepted to the bail within the ten days, and the defendant gave notice of justification within the time allowed by law, (Code, § 193), and before the expiration of the time embraced in the last notice, gave the notice of the present motion to vacate the order of arrest. On the day prescribed in the notice of justification, both parties appeared and one of the bail established his sufficiency by affidavit; but the other was found clearly insufficient and the further justification was adjourned by the court. The bail therefore did not justify on the eighteenth. Both must justify, and it is not clear but that the omission of one to justify, is fatal to both. Further time being given by the court would probably prevent this consequence (1 Archbold Pr. 89).

But it is not the proof of their sufficiency merely which constitutes the justification of bail. Such justification is not complete until the judge has endorsed his allowance on the undertaking and caused the same to be filed with the clerk. Until that is done, the bail are not perfected, and the sheriff is liable. (Code, § 196, 1 Arch. Pr. 89).

Had the bail been actually perfected on the 23d January, to which day the court adjourned the justification, a question might arise whether this motion made on the 20th of January, would not be too late, though noticed for that day as early as the seventeenth of that month; but it is unnecessary to consider that question as I do not understand the parties to allege that the justification has in fact ever taken place. There is nothing therefore to preclude the defendant from making his motion, and the preliminary objection must be overruled, and the motion proceed; costs to abide the event of the motion.