Opinion
July, 1935.
Order exonerating the appellants as bail from further liability accruing on and after March 11, 1935, modified by providing that such exoneration be without limitation, but on condition that appellants pay the plaintiff's costs and expenses incurred after the return of the execution against the person (Civ. Prac. Act, § 875), and as so modified affirmed, in so far as appealed from, without costs. We are of opinion that the surrender of the defendant was timely and exoneration of the bail was mandatory. (Civ. Prac. Act, §§ 865, 875.) Although the failure of the appellants to answer does not affect the timeliness of the surrender and they are entitled to an order of exoneration, whether or not that defense may be invoked is dependent upon the determination of an application to open the default, as to the merits of which this appeal is not concerned and as to which we express no opinion. Lazansky, P.J., Young, Hagarty, Carswell and Scudder, JJ., concur.