Where a provision of this Part 2 or the Court
by order requires an undertaking to be given by or on behalf of a
party or person, the party or person need not join with the sureties
in the execution thereof. Such undertaking must be executed by one
(1) or more sureties to be approved by the Court or by a fidelity
or surety company specifically authorized by law to act as surety,
which undertaking must be acknowledged or proved and certified in
like manner as a deed to be recorded. Where it is executed by two
(2) or more persons it must be joint and several in form and except
when executed by a fidelity or surety company must be accompanied
with the affidavit of each surety subjoined thereto, to the effect
that he is a resident and a householder or freeholder within the City
of Albany or a town adjoining thereto within the County of Albany
and is worth twice the sum specified in the undertaking over all the
debts and liabilities which he owes or has incurred and exclusive
of property exempt by law from levy and sale under an execution. When
the undertaking is executed by a fidelity or surety company all the
provisions of the Civil Practice Act and the rules and regulations of the Supreme Court shall
apply thereto. Undertakings must be approved by the Court as to their
form and the sufficiency of the sureties which approval must be indorsed
upon such undertakings.
Except as otherwise prescribed in this Part
2 the party for whose benefit an undertaking is given or his attorney
may, within three (3) days after service of such undertaking or notice
of filing thereof in the manner prescribed by law, serve upon the
party giving such undertaking or his attorney a written notice that
he excepts to the sureties or either of them who executed such undertaking,
otherwise he is deemed to have waived all objections to them. Such
notice must specify the day and hour that the party giving it requires
the sureties to appear and justify before the Court which must be
within three (3) days from the service of said notice.
For the purpose of justification the sureties
excepted to must attend before the Court at the time specified in
the notice of exception and be examined under oath touching their
sufficiency in such manner as the Court in its discretion deems proper.
The Court may adjourn such examination until it is completed. The
examination must be reduced to writing and subscribed by the person
examined. Where a fidelity or surety company is excepted to, such
company shall justify in the manner required by law of fidelity and
surety companies.
If the Court finds the sureties excepted to
sufficient, it must endorse the undertaking, as allowed and cause
the same to be filed with the Clerk. If the Court finds the sureties
excepted to insufficient it shall require a new undertaking to be
executed and filed, with other sureties, who may be excepted to in
the same manner as the original sureties, and if such new undertaking
is not executed, filed or allowed, the Court may grant such relief
as the circumstances in its judgment may require.
An undertaking required to be given by this
Part 2 must be filed with the Clerk of the Court, except where, in
a special case a different disposition thereof is directed by the
Court or prescribed in this Part 2.