96 Misc. 697 | N.Y. App. Term. | 1916
This action is brought against the sureties to recover upon an undertaking upon an appeal. In an action brought by this plaintiff against Louis Rivkin and another the plaintiff recovered a judgment. The defendants thereupon appealed to the Appellate Term and an undertaking was executed by the defendants in this action as sureties, which undertaking was approved and filed. The undertaking was in the usual form. On December 1, 1915, the appeal was dismissed by the Appellate Term. Notice of the entry of this order was given to the sureties. Subsequently this action was commenced. No part of said judgment has been paid and an execution was issued upon said judgment subsequently to the dismissal of the appeal and was returned wholly unsatisfied. The facts stated in the complaint are not denied. The defendants allege as a defense that the attorney for the plaintiff served a notice of exception to the sureties and the attorney for the defendants in that action served a notice of justification and the sureties never justified. It was agreed between the attorneys, after the service of said notices, that instead of justification before the court affidavits as to their qualification be submitted, and on the return day neither the sureties nor either of the parties appeared. No affidavits were made and filed. No proceedings were had upon the above mentioned judgment between the time the undertaking was filed and the time the appeal was dismissed. On Octo
Prior to the trial which resulted in the present appeal, the plaintiff made a motion for judgment on the pleadings. The motion was denied and plaintiff seeks a review of the order entered thereon on this appeal. Upon the decision of that motion an opinion was written. No opinion was written upon the trial above mentioned. The decision of the court below seems to be based upon two propositions both of which I think are erroneous. The first is that the revision of the section of the law in relation to the effect of the failure of sureties upon undertakings upon appeal to justify has worked no change in the law and the second is that it would be inequitable to give effect to such change if made.
The Municipal Court Act (§ 315) which was in effect prior to September 1, 1915, so far as it affects the question involved in this case, read as follows: “ The effect of a failure so to justify and procure an allowance is the same as if the undertaking had not been given.”
Section 160 of the Municipal Court Code which went into effect September 1,1915, the construction of which must govern the decision in this case, reads as follows: “ If the sureties fail or refuse to justify after service of the notice of exception, the respondent may proceed as if no undertaking had been executed.” Without suggestion from any source, any one reading the two sections would concede that a complete change had been made in the law. The language used is appropriate to make a change. Before the revision the
Viewed from an equitable standpoint, the execution and filing of the undertaking procures some stay. Before an execution can issue the stay created by the filing of the undertaking must be annulled by a notice of exception and the failure of the sureties to justify. This may be but a few days but it may be of real importance to the judgment creditor and may also enable the judgment debtor to avoid payment. This is sufficient to afford a consideration for the undertaking and makes it entirely equitable to enforce the undertaking against the sureties.
Judgment reversed, with thirty dollars costs, and judgment directed in favor of the plaintiff for the full amount claimed, with appropriate costs in the court below.
Clabk and Benedict, JJ., concur.
Judgment reversed, with thirty dollars costs.