MOSES against THE WATERBURY BUTTON COMPANY

MOSES against THE WATERBURY BUTTON COMPANY. New York Superior Court; Special Term, December, 1873. Attachment. —Justification of Sureties. Under section 241 of the Code of Procedure, as amended in 1869, when an undertaking is given to obtain the discharge of an attachment, it is the duty of the sheriff, notwithstanding the ex parte approval by the court of an undertaking, to retain possession of the property until there has been an opportunity for the justification of the sureties. This is matter of substantial right, which plaintiff does not waive by a verbal consent to the entry of the order for discharge ; and such an order allowing a surrender of the property without a justification of the sureties or a waiver of the right to object, is erroneous, and will be corrected on motion. Israel W. Moses sued the Waterbury Button Company and obtained an attachment against property issued as a provisional remedy under the Code. The defendant, having given the usual undertaking to procure a discharge, entered an order thereon by plaintiff s verbal consent, which order plaintiff now moves to correct so as to save Ms right to except to the sureties and have them justified before the delivery of the property. [MAJORITY — Freedman, J.] Freedman, J. Under sections 240 and 241 of the Code, as they stood prior to 1869, a defendant, after appearance in the action, could apply ex parte for the. discharge of the attachment. Upon such application he was bound to deliver to the court or officer who had issued the attachment, the undertaking required by section 241, and upon compliance with this provision and the approval of the undertaking by such court or officer, an order was made discharging the attachment. It thereupon became the duty of the sheriff, without express directions contained in the order to that effect, to deliver or pay to the defendant or his agent all the proceeds of sales and moneys collected by him under the attachment, and all the property attached, remaining' in his hands. The plaintiff was not entitled, as matter of right, to notice of any of these proceedings. By an amendment of section 241 passed in 1869, it .was, however, provided as follows: “ And the plaintiff may, within three days after receiving written notice of the filing of such undertaking, give notice to the sheriff that he excepts to the sufficiency of the sureties. If he fails to do so, he shall be deemed to have waived all objection to them. When the plaintiff excepts, the sureties shall justify on notice in like manner as upon bail on arrest. And the sheriff shah be responsible for the sufficiency of the sureties, and may retain possession of the property attached, and the proceeds thereof in his hands, until the objection to them is either waived as above provided, or until they shall justify, or new sureties shall be substituted and justify.” Under this provision it is the duty of the sheriff to retain possession of the property attached, notwithstanding the ex parte approval of the undertaking by the court or officer on granting the order for the discharge of the attachment, until all objections tó the sureties on plaintiff’s part are either waived or the undertaking be reapproved on justification of the sureties ; and any positive direction to the contrary which may be incorporated into the order of discharge, is erroneous. The provision referred to secures to the plaintiff a substantial right, of which he cannot be deprived. The verbal consent of the. attorney for the plaintiff to the entry of the usual order for the discharge of the attachment in this case cannot, therefore, be construed into a waiver of the plaintiff’s right to except to the sufficiency of the parties, or. to their justification.' The order of December 34 must be modified by striking out the words “ ánd that all the property attached thereunder by the sheriff of the city and county of New York remaining in his hands be delivered to tne defendants or their agents, and released from said 'attachment.”