Any person of whom an undertaking is required may agree with his surety for the deposit of any assets for which his surety may be held responsible with a bank, or safe deposit or trust company, authorized to do business in the state, if such deposit is otherwise proper and in such manner as to prevent withdrawal without the written consent of the surety or an order of court, made on notice to the surety. The agreement shall not affect the liability of the principal or surety as established by the terms of the undertaking.
§ 2509.Control of assets by agreement with surety
Article 25. Undertakings · Last amended 1963 · Last verified July 21, 2026
In one sentenceCPLR 2509 lets a person required to post an undertaking arrange with the surety to deposit the covered assets with an authorized bank or trust company under terms that block withdrawal without the surety's consent or a court order, without changing anyone's liability under the undertaking.
Full Text of CPLR 2509
Plain-English Summary
A surety backing an undertaking wants some assurance the principal will not spend or move the assets the surety is on the hook for. CPLR 2509 gives the two of them a tool for that: the person required to post the undertaking can agree with the surety to deposit the relevant assets with a bank, safe deposit company, or trust company authorized to do business in New York, arranged so the assets cannot be withdrawn without the surety's written consent, or a court order made on notice to the surety.
The arrangement is a practical safeguard, not a substitute for the undertaking's own terms. CPLR 2509 makes clear that the deposit agreement does not affect the liability of either the principal or the surety as the undertaking itself establishes it — the deposit backs the promise, but the promise still governs who owes what.
Frequently Asked Questions
Can a surety require the principal to deposit assets as security?
Yes. CPLR 2509 allows the person required to give the undertaking to agree with the surety to deposit covered assets with an authorized bank, safe deposit company, or trust company, structured to prevent withdrawal without the surety's consent or a court order.
Does depositing assets with a bank change who is liable under the undertaking?
No. CPLR 2509 states that the agreement to deposit assets does not affect the liability of the principal or the surety as established by the undertaking's own terms.
How can the deposited assets be withdrawn once they are secured?
Only with the surety's written consent, or by a court order made on notice to the surety.
What type of institution can hold assets deposited under CPLR 2509?
A bank, or a safe deposit or trust company, authorized to do business in New York.
Why would a surety want assets deposited instead of relying on the affidavit alone?
A deposit gives the surety a concrete way to control assets the surety might be called on to pay against, beyond the financial representations made in the surety's affidavit under CPLR 2502.
Advisory Committee Notes
This section is derived from CPA § 153. Minor language changes have been made to conform with the new CPLR. The section is in accord with various drafts of a model statute on joint control of property. See Model Joint Control Statute proposed by a subcommittee of the Committee on Fidelity and Surety Insurance Law of the Insurance Section of the American Bar Association (September 15, 1957); Model Probate Code § 108 (prepared by the Real Property, Probate and Trust Law Section of the American Bar Association); cf. Kissam, Joint Control by Sureties 28 (read at the Annual Convention of the American Bar Association in Kansas City, Missouri, September 28, 1937). The model statute or substantially similar adaptations has been adopted in 32 states.
The purpose of this section is to abrogate a common-law rule, and to insure that joint control or countersigner agreements between principal and surety to conserve the assets of the fiduciary estate will not be branded as contrary to public policy. The major purposes of joint control are (1) to minimize the opportunity for mismanagement and embezzlement; (2) to compel the fiduciary to deposit the trust estate, properly identified, in a qualified depository; (3) to have for accounting purposes an accurate record kept by the surety of receipts, deposits, sales, withdrawals and substitutions of funds and assets of the estate; and (4) to avoid the necessity for the fiduciary to deposit collateral security with the surety or to procure an indemnity agreement of responsible persons other than the surety. A major effect of former § 153 has been to aid in the proper administration of trust funds.
Amendment History
Add, L 1962, ch 308, § 1, eff Sept 1, 1963.
Source & verification. Provision text, History, and Advisory
Committee Notes are reproduced verbatim from the Consolidated Laws of New York.
Last verified July 21, 2026.
· Official source
Also known as: deposit assets with surety New Yorksurety controlled bank deposit undertakingtrust company asset deposit litigationNew York surety agreement deposit