majority"> Ruger, Ch. J.

This is an appeal from an order of the General Term reversing an order of the Special Term denying a motion to open a default, taken upon a hearing for the justification of bail upon an arrest in the action.

The defendant and sheriff each had notice of the motion. Each appeared in opposition thereto and each appeals from the decision of the General Term.

It is provided by section 580 of the Code of Civil Procedure that for the purpose of justification each of the bail must attend before the judge at the time and place mentioned in the notice, and be examined on oath touching his sufficiency. It is further provided that the judge may adjourn the examination from day to day in his discretion until it is completed, but such adjournment is required to he to the next judicial day unless by consent another day is agreed upon.

Section 581 provides, “ If the judge finds the bail sufficient he must annex the examination to the undertaking, indorse his allowance thereon and cause them to be filed with the clerk. The sheriff is thereupon exonerated from liability.”

The allowance of bail by the judge in this case was made upon regular notice, and all of the proceedings relating thereto were regularly taken in conformity with the Code. The contingency had occurred upon'which the statute declares the sheriff discharged from liability. We do not think that any power *59 exists in the court to renew his liability. (Ballard v. Ballard, 18 N. Y. 491; Butlerʼs Bail, 1 Chitty R. 83; Petersdorff on Bail, 318; Trumbull v. Healy, 21 Wend. 670; Cornell v. Reynolds, 1 Cow. 241.) The question involved is one of power, and the court have no right to speculate as to the effect of the order.

The sheriff has once been legally discharged from his liability and he cannot be reinstated as a surety, except by his consent or express statutory authority. We believe that none such exists.

When the court have power to relieve a party from the consequences of a default it is a question of discretion in the courts below as to whether they will do so of not. The circumstances existing in this case would very well justify the action of the court were this a proper case for the exercise, of such power. The sheriff occupies the position of a surety and his rights are striotisimi juris, being once discharged from his liability it cannot be revived against his objection.

We think the order of the General Term should be reversed, and that of the Special Term affirmed.

All concur

Ordered accordingly.

Citation profile

Relationships

How this case has been treated — in progress