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[1] 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.
[1]
Editor's Note: See now the Civil Practice Law and Rules.
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.