Opinion
Submitted March 9, 1880
Decided June 1, 1880
Geo. C. Genet A.J. Vanderpoel for the appellant.
Thomas Bracken for the respondent.
The reasons given by BRADY, J., in his opinion in the Supreme Court are sufficient to commend the motion to the favorable consideration of this court, and if the order made in opposition thereto is subject to review by us, would lead to its reversal; but the respondent objects that it is not appealable, and the question thus raised must be first considered. The provisions of the Code of Civil Procedure relating to the exoneration of bail are relied upon to some extent by the appellant, but they are not applicable to the case before us. The bail was charged, and the various matters now relied upon, occurred prior to its enactment; whatever effect, therefore, might be otherwise given to the terms of section 601, the rights of the parties to this appeal must be determined upon the law as it stood prior thereto. The action against the bail was commenced in 1873, and a defense interposed. By section 191 of the Code of Procedure, the bail might have been exonerated, upon the happening of certain events, some of which exist here, and among others by the legal discharge of the principal from the obligation to render himself amenable to process within twenty days after the commencement of the action against the bail, or within such further time as might be granted by the court. An application for this extension might have been made not only after the expiration of the time limited, but even after judgment. ( Nichols v. Sutfin, 7 Cow. 422; Bank of Geneva v. Reynolds, 20 How. Pr. 19; Brady v. Brundage, 59 N.Y. 310.) But while exoneration within twenty days was matter of right, after that time it depended upon favor, or the discretion of the court. In this case no legal right of the bail has been denied, and his motion assumes that by the application of strictly legal rules, he will be subjected to the penalty of his undertaking. The jurisdiction of this court does not reach such a case. ( Brady v. Brundage, 59 N.Y. 310; Anonymous, id. 313; Alling v. Fahy, 70 id. 571.) The appellant does not show, nor can we learn from the papers, that the order appealed from was made upon any ground concerning which the court was not called upon to exercise its discretion. ( Cushman v. Brundrette, 50 N.Y. 296. ) The case, therefore, is within the rule well established in the cases above cited, and many others to which it is needless to refer. We are, therefore, constrained to hold that the respondent's objection is well taken, and that the appeal should be dismissed, but without costs.
All concur, except ANDREWS, J., absent at argument.
Appeal dismissed.