In

People v. Metropolitan Telephone and Telegraph Company. the attorney-general, to employ special counsel. view of the statutes regulating the employment of counsel, such authority cannot be deemed to be vested in that officer, as incident to his office. Provision is made for the appointment of deputies to assist the attorneygeneral. This general provision, and the statute authorizing the governor, or the attorney-general, in certain cases, to appoint special counsel, seem plainly to exclude the inference, of an authority in the attorney-general, to appoint special counsel, outside of the statute."

It will be observed that in that opinion, the court say, that not only is the authority of the attorney-general limited by the express provisions of the statute, but that he has no authority incident to his office to employ counsel. A very elaborate argument was had in this case on this point, on Friday last, and I was much pressed by counsel with the point, that it would be utterly impossible for the attorney-general to perform the duties of his office, if such a construction were given to the statute as is contended for by the defendant's counsel. With that consideration I, of course, cannot deal. The highest court of the State has said that no authority exists in the attorney-general, outside of that statute, to employ counsel, and they have also said, that the statute does not give him power to employ special counsel in such a case as this. And apart from that consideration, even if there were any doubt in my own mind

as to the exact force of the language which the [2] court have employed, it is the right of the defend

ants to insist that, when this action is tried, it shall be tried by counsel who are, beyond all dispute, entitled to represent the State. Should they succeed upon the trial of this action, it is their right to have a judgment which shall be binding upon the State.

Perhaps it is unnecessary for me to say anything more, but I will observe, in conclusion, that the attorney-gen

People v. Metropolitan Telephone and Telegraph Company.

eral himself, in his communication to the legislature dated the 11th day of April, 1882, seems to have concurred in the view which I have expressed, and seems to have put the same construction upon the decision of the court of appeals, in the case to which I have referred, as that which I have put on it. The question was there presented as to the power of the attorney-general, or the State, to have certain cases opened in which orders or allowances had been made, and without reading the whole language of the opinion, I will refer to a portion of it. The learned attorney-general says:

"The court of appeals has this day decided that the attorney-general had no power to broadly authorize the special counsel to represent him, upon the conduct of these litigations, and, therefore, it impliedly follows, that the service of papers on such special counsel, and his various appearances for the attorney-general were unauthorized by law. I am of the opinion that, under this decision, the attorney-general may ask the courts, with propriety, to review the various orders granted, upon the ground that the State has not been legally represented upon the hearing in those cases, where the action was brought by the attorney-general."

In view of that opinion, and in view of the opinion of the court of appeals, I ought not, even if I entertained a doubt as to the construction of this statute, to force these defendants to trial, when, if a judgment should be obtained in their favor, an application might subsequently be presented to the court to open that judgment and set aside the verdict of the jury on the ground that the State had not been legally represented. Therefore, in obedience to the opinion of the court of appeals, I must sustain the objection of the defendant's coun[3] sel, and I must direct that this case stand over until the attorney-general or one of his lawfully authorized deputies appears here, on behalf of the State.

Manning v. Gould.

MANNING, RESPONDENT, v. GOULD AND ANO., APPELLANTS.

COURT OF APPEALS; OCTOBER, 1882.

§§ 1335,* 1346, 1351, 1352.

Liability of sureties to undertaking on appeal. When not bound by conditions of undertaking.-Effect of failure of sureties to justify when excepted to. What right failure to justify gives respondent.-Respond

ent cannot have right to disregard appeal and also

have benefit of undertaking.

Sureties to an undertaking, given to stay execution of judgment, on appeal to the general term of either the supreme court or a superior city court, from a final judgment rendered in the same court, when excepted to, and they fail or refuse to justify, and their justification is not waived by the respondent, are not bound by the conditions of the undertaking.

Under section 1335 of the Code, failure of the sureties to an undertaking upon appeal to justify when excepted to, entirely defeats the object and purpose of the undertaking; and the respondent has the right to disregard any perfecting of the appeal or stay of proceedings which justification would have assured. A respondent who has thus the right to disregard an undertaking and to enforce his judgment pending appeal, cannot also have the benefit which the undertaking was intended to secure and be permitted to treat it as a valid security and hold the sureties to a liability thereon.

The legislative intent to make the effect of a failure to justify and procure an allowance, when the sureties are excepted to, the same as if the undertaking had not been given, is expressed more strongly in section 1335 of the Code of Civil Procedure than in section 334 of the Code of Procedure.

Query, whether a respondent who has excepted to the sufficiency of the sureties to an undertaking upon appeal may waive his exception, at any time before the refusal of the sureties to justify.†

*Section 1335 was amended by Chapter 397 of the Laws of 1882. It is the amended section which is considered in the opinion.

Section 1305 provides that: "An undertaking, which the appellant is required, by this chapter, to give, or any other act which he is so required to do, for the security of the respondent, may be waived by the written consent of the respondent."

Manning v. Gould.

1 Civ. Pro. R. (1 McCarty), 216; S. C. 47 N. Y. Super. 387, reversed. Decker. Anderson (39 Barb. 346), distinguished.

Ballard v. Ballard (18 N. Y. 491); Gibbons v. Berhard (3 Bosw. 635); Hill v. Burke (52 N. Y. 111); Knapp v Anderson (7 Hun, 295, aff'd, 71 N. Y. 466); McSpedon v. Bouton (5 Daly, 30), explained.

(Decided December 12, 1882.)

Appeal by defendants from a judgment of the general term of the superior court of the city of New York, affirming a judgment entered upon a verdict found by direction of the court (Reported below, 1 Civ. Pro. R. (1 McCarty), 216, and here reversed).

The plaintiff recovered judgment against one Rowland, and said Rowland appealed to the general term, and gave an undertaking to stay the execution of the judgment pending such appeal, and the defendants in this action, Gould and King, were his sureties. The plaintiff excepted to the sufficiency of the sureties, and notice of their justification was duly served for March 4, 1880. On the appointed day, both sureties appeared and were sworn, and the examination of Gould had begun, and was progressing, when news of the death of Rowland was received. Thereupon Gould refused to be further examined and declared that he would not go upon the bond of a dead man, and declined to accept the examination as it then stood and to sign the record thereof. King, who was to have attended for examination upon the following day, then refused to appear and be examined. No further measures were taken by the plaintiff in regard to the justification of the sureties, nor was there any notice of withdrawal of the exception to their sufficiency, or any notice served accepting them as sureties.

The action against Rowland was revived against his administratrix, the appeal prosecuted, and the judgment affirmed at general term. Thereupon this action was brought against said Gould and King, upon their lia

Manning v. Gould.

bility as sureties to said undertaking. At the trial, the facts stated above were given in evidence, and the defendants moved to nonsuit the plaintiff, and, also, that the jury be directed to bring in a verdict for the defendants. These motions were denied, and a motion by the plaintiff that the jury be directed to bring in a verdict for the plaintiff was granted, against the objection of the defendants.

Nathaniel C. Moak (Geo. C. Eldredge, attorney), for appellants:

Cited generally on the point here decided, in addition to the cases given on appeal to the general term and to be found in the report below, Chamberlain v. Dempsey, 13 Abb. 421, S. C., 22 How. 356; Kelsey v. Campbell, 14 Abb. 368, S. C., 38 Barb. 238; Hees v. Snell, 8 How. 185; Blake v. Lyon, etc., Manufacturing Co., 75 N. Y. 611; Rae v. Beach, 76 Id. 164; Langley . Warner, 1 Id. 606.

Fred. M. Littlefield, for respondent:

Cited generally on the point here decided, in addition to the cases given on appeal to the general term and to be found in the report below, Babbitt v. Shield, 10 W. Dig. 289; McMahon v. Allen, 32 How. 320; Crist v. Burlingame, 62 Barb. 351; Gates v. McKee 13 N. Y. 232; Walrath v. Thompson, 4 Hill, 200; Scott v. Duncombe, 49 Barb. 73; Sumler v. Wilson, 1 Md. 144; Hibbs v. Blair, 14 Pa. St. 413; State v. Berry, 12 Mo. 376; Barnes v. Webster, 16 Id. 258; Sheppard v. Collins, 12 Iowa, 570; Van Duyne v. Coope, 1 Hill, 557; Flack v. Eager, 4 Johns. 185; Andrews v. Herriot, 4 Cow. 514; 1 Arch. Pr. 310; 1 Tidd's Pr. 258 (9th ed.); Mills v. Thursby, 11 How. 113.

TRACY, J.-The question to be determined in this case is, whether the sureties to an undertaking given on