24 How. Pr. 467 | N.Y. Sup. Ct. | 1863
In April, 1856, Daniel Gardner recovered a judgment at the special term of this court, held at Troy, in the. county of Rensselaer, against Henry Smith and William B. Ogden, for the sum of $15,000 and interest thereon with the costs of the action, with a provision that the reconveyance of certain lands mentioned in the judgment, and within the time therein prescribed, should be deemed a satisfaction of the judgment or decree, so far as damages and interest were concerned. From this judgment an appeal was taken to the general term, and thereupon the defendants in this action entered into and executed the undertaking upon which this action is brought, which was duly acknowledged and filed in the proper office. The judgment was afterwards reversed at the general term and a new trial ordered. This was in December, 1851. In January, 1858, Gardner appealed to the court of appeals from the' order granting a new trial, and in December, 1860, the court of appeals gave judgment in favor of the defendant Ogden, and against the defendant Smith—that is, the court of appeals reversed the judgment of the general term, and affirmed that of the special term against the defendant Smith. The judgment of the court of appeals was perfected in this court upon the remittitur against Smith; an execution against him was duly issued thereon, which was returned nulla bona, of which the defendants in this action had notice, but they omitted to pay the judgment. Thereupon Gardner brought this action against them upon the undertaking. The action was put at issue and tried before Mr. Justice Lott, without a jury,
The undertaking is given in conformity with § 335 of the Code. It recites the recovery of the judgment at the special term, giving the amount thereof, and states that the defendants have appealed therefrom to the general term of the supreme court. It then asserts that the defendants “ undertake that the appellants will pay all costs and damages which may be awarded against them on appeal, not exceeding $250 ; ” and also, “ that if the said judgment so appealed from, or any part thereof, be affirmed, the appellants will pay the amount directed to be paid by said judgment, or the part of such amount as to which the said judgment shall be affirmed, if it be affirmed only in part, and all damages which shall be awarded against said appellants on the said appeal.” The defendants claim that the meaning and effect of their agreement is not to be enlarged by construction, so as to charge them as sureties for the defendants in the judgment appealed from; and that the recital in the words, “ have appealed to the general term,” is to be regarded as a limitation, restraining and limiting their liability to the appeal to the judgment of the general term. The judgment appealed from was entered upon the order of a single judge, and the only appeal that could be taken was that to the general term. In no other way could the defendants review what had been done. The undertaking would, therefore, have been quite as effective for all the purposes of perfecting the appeal and staying the collection of the money, mentioned in the judgment or decree, had the words “ general term” been omitted. They are to be regarded as merely descriptive of what had been done to give point and effect to the words that follow, and not to limit the liability of the sureties to such order or judgment as might be rendered by the general term. Besides, the
The judgment of the general term reversed that rendered at the special term and ordered a new trial. It is to be observed that the undertaking bears date on the 26th of July, 1856. At this time there was no right of appeal to the court of appeals from an order of the general term of this court granting a new trial. In 1857 the practice was
The judgment of the special term should be affirmed.