Stern v. Staples

62 How. Pr. 380

Opinion

Shea, C. J.

—The orders appealed from are reversed, with costs, and the defendant is at liberty to proceed with the justification of sureties before the county judge of Jefferson county (Seed agt. Teale, 2 N. Y. Weekly Dig., 545 ; McAdam, J.), or, ais the defendant may be advised, under the other provisions of the Code, upon five days’ previous notice by mail or personally to the attorney for the plaintiffs.

Goepp, J.

— The defendant having been ordered to be relieved from a default, in supposing a summons to be returnable in twenty days, instead of six, to file an undertaking conditioned to pay any judgment that might be recovered, with two sureties justified, complied with the order by filing an undertaking justified before the county judge of Jefferson county, the county of their and of the defendant’s residence. The order rejects the undertaking because not justified before a justice of the court in New York. By rule 5, every justification made before the county judge of the parties’ residence is good.

The forms of the supreme court shall be applicable to the marine court (McAdam's Marine Court Practice, sec. 40, page 293 ; Id., page 228).

The sureties on an undertaking given to discharge an attachment in the marine court may justify before a county judge of the county in which they reside (Seed agt. Teale, 2 W. D., 545).

The orders appealed from are reversed, with costs and disbursements of the appeal to the appellant.