Opinion
Argued April 26, 1875
Decided May 25, 1875
Francis Byrne for the appellant. Samuel Hand for the respondent.
The undertaking upon which the plaintiff claims to recover in this action was intended to comply with the requirements of the Code in case of an appeal to the Court of Appeals, where the appellant desired a stay of proceedings upon the judgment from which the appeal is taken. (See Code, §§ 334, 335.)
It is insisted by the counsel for the defendant that the judge erred upon the trial in refusing to dismiss the complaint, upon the grounds that there was no proof of the service of the notice of appeal on the adverse party, and on the clerk, and of the filing of the same at the same time with the clerk, and of the service of a copy of the undertaking, at the same time on the plaintiff, as required by the provisions of the Code. (See §§ 327, 340, 343; Webster v. Stevens, 5 Duer, 682; Thompson v. Blanchard, 2 N.Y., 561.)
The objections relate to the regularity of the appeal, and, I think, are not well founded. It appeared upon the trial by the remittitur of the Court of Appeals, which was introduced in evidence, and it is stated as a fact in the case, that the remittitur showed, among other things, that an appeal was taken from the judgment of the General Term of the Supreme Court (referred to in said undertaking) to the Court of Appeals, and that said judgment was duly affirmed by the Court of Appeals, with costs, and the proceedings duly remitted to the court below. This was, I think, conclusive evidence that an appeal had been duly taken by the filing of the notice with the undertaking, the service of the same, and of a copy of the undertaking as the Code requires, and it was not necessary to establish, by other and independent evidence, that these preliminary steps, which are required to perfect the appeal, had been taken. It may also be remarked, that the complaint alleged that the judgment appealed from was, by the Court of Appeals, duly affirmed with $132.21 costs; and upon the trial it was admitted by the defendant's counsel that the judgments referred to in the complaint were duly recovered as therein stated. But even if the provisions of the Code had not been complied with in the particulars named, it was, at most, an irregularity, and the submission of the cause to the Court of Appeals, by the respondent, without any objection to the jurisdiction, must be regarded as a waiver of the filing and service, and obviate the alleged defect. It is further insisted that the undertaking was of "no effect" to stay the judgment, because no affidavit was made that the sureties were worth double the amount specified therein, as required by the Code; and if the undertaking was effective for the purpose of an appeal merely, and not operative to stay execution upon the judgment, the appellant was only liable for the costs of the appeal to the General Term and the Court of Appeals. That the court should have dismissed the complaint upon this ground, and also erred in refusing to charge the jury as requested in accordance with this view of the subject.
The Code (§ 341), provides that, "an undertaking upon an appeal shall be of no effect, unless it be accompanied by the affidavit of the sureties that they are each worth double the sum specified therein." The affidavit of each of the sureties was, that he was worth the sum $2,000, which was more than double the amount of the judgment from which the appeal was taken. It was not necessary that it should be precisely double the amount, and sufficient that it exceeded that sum. Nor was the respondent bound to object because the justification was for more than the law required. ( Ex parte Eastabrooks, 5 Cow., 27.) It is not distinctly claimed, but assuming that the justification should be in double the amount of the judgment specified in the recital, and double all costs and damages, not exceeding $500, in accordance with the obligatory clause of the undertaking, I think, it would not affect the validity of the undertaking. In Gibbons v. Berhard (3 Bosw., 635), it was held that an undertaking is not necessarily a nullity, in the sense that it is not obligatory, simply because it was not accompanied with such an affidavit of justification of the sureties, as the Code prescribes. While, therefore, such an undertaking might not operate as a stay of proceedings, and the appeal might be dismissed for irregularity, upon motion of the respondent, it does not relieve the sureties from the liability they have taken upon themselves. It still remains an obligation for them to perform if the judgment is affirmed. The court might even allow the affidavit of the sureties to be filed at a future day, if the respondent moved to dismiss the appeal, because the justification was insufficient. ( Mills v. Thursby, 11 How. Pr., 129; Code, § 327.) The object of the provision was, no doubt, to protect the respondent against insufficient sureties upon an appeal, as the section also provides for an exception by him to the sufficiency of the sureties, and their subsequent justification; but it was not intended, I think, that the sureties should escape, because there was an informality in the justification, or it was not strictly in accordance with the Code. So long as the undertaking was in due form, in accordance with a statute, and the appellant received a full consideration for the bond, by a stay of proceedings on the judgment until the appeal was decided, there is no sufficient reason why the sureties should be exonerated.
The recital in the undertaking, stating the original judgment, and its affirmance by the General Term, "with costs, making in all the sum of $994.61," is, I think, an allegation that the judgment appealed from was for that amount, and a statement of an adjudication to that effect. Even if there was an irregularity in entering up, in a judgment of affirmance at General Term, the amount of the judgment at Special Term, it cannot be made available in this action. The defendant was bound by the recital in the undertaking, that the judgment was of a certain amount, and obligated himself to pay the same, if it was affirmed by the Court of Appeals. He is, therefore, estopped from questioning the accuracy of the recital. No other question is made which demands discussion, and there being no error, the judgment should be affirmed with costs.
All concur.
Judgment affirmed.