Van Slyke, administrator, &c. vs. Schmeck.
1843. July 18.
Technical defects in an appeal bond, upon an appeal to the chancellor from an order or decree of a surrogate, are amendable by the appellate court, under the provisions of the revised statutes on that subject.
And a formal defect in the petition of appeal filed in the court of chancery ( upon an appeal from a surrogate, may also be amended, upon terms.
But if the appeal bond is not approved by the surrogate within the time allowIowed by law for appealing from his decision, the appeal is irregular and must be dismissed; and the appellate court has no power to remedy such a defect.
This was an application to dismiss an appeal from the sentence and decree of the surrogate of Niagara county, for the payment to the respondent, of $1054,40 and interest. The decree appealed from was entered on the 30th of December, 1842, and on the 28th of January thereafter the appellant filed in the office of the surrogate an appeal, together with a bond to the respondent in the penalty of *302$100, with two sureties, whose affidavits were annexed, stating that they were householders, and were each worth $200 over and above all just debts and responsibilities. But the bond was not approved by the surrogate; who was absent from home at the time the bond was left at his office, and who did not return until the evening of that day. When he was applied to to approve the bond, about a month afterwards, he declined to do so ; not only on the ground that it was too late, but also because he did not deem the sureties responsible for the amount required. The bond was also defective in form ; the condition thereof being that the appellant should diligently prosecute the appeal to effect and pay all such costs as should be adjuded against her in the event of her failure to obtain a reversal of the decision appealed from; instead of a condition to prosecute her appeal to effect, and to pay “ all costs that should be adjudged against her by the court of chancery,” as required by the 108th section of the title of the revised statutes relative to writs of error and appeals. The petition of appeal filed with the register was also defective in form. For it did not show who were intended to be made parties to the same, as respondents in the appeal.
J. L. Curtenius, for the appellant.
H. Gardner, for the respondent.
The Chancellor.
If no other difficulty existed in this case than the technical defect in the condition of the bond, that could be remedied by allowing the appellant to amend, under the provisions of the revised statutes on that subject. (2 R. S. 556, § 34. Potter v. Baker, & Paige’s Rep. 290.) The formal defect in the petition of appeal is also one which this court would permit the appellant to amend, upon payment of costs, &c.
But the statute declares that the appeal shall not be effectual until a bond shall be filed with the surrogate, with two sufficient sureties, to be approved by him. (2 R. S. *303610, § 108.) If the appeal bond, therefore, is not approved by the surrogate within the time allowed by law for appealing, the appeal is irregular and must be dismissed j as this court has no power to remedy such a defect. Here the bond was not approved by the surrogate 5 and he states in his affidavit that he did not consider the sureties responsible for the amount required. Their affidavit of justification was not equivalent to an approval of the sureties by the surrogate. For if he. doübted their responsibility, it was his duty to examine them on oath as to the particulars of their property, where it was situated, &c. and as to the nature and amount of their debts and responsibilities, before he approved the appeal bond. A bond properly approved not having been filed with the surrogate within the thirty days allowed by law for appealing, the appeal filed with him was irregular and must be dismissed, with costs.