89 F. 168 | U.S. Circuit Court for the District of Northern California | 1898
This is an action to recover the sum of $7,485.83 from S. Silverberg and William C. Pease, as sureties on the
The complaint shows that the plaintiff in this case recovered a judgment against Julius Jacobs and George Easton on February 1,1892, in the superior court of the city of New York, for the sum of $7,485.83; that thereupon, after the entry of said judgment, and before the 10th day of August, 1882, the said Jacobs aud Easton appealed from said judgment rendered against them to the general term of the superior court of the city of New York; that by virtue of section 1307 of t.he (''ode of Civil Procedure of the state of New York it was necessary, in order to perfect said appeal, “to file with the clerk with whom the judgment appealed from is entered, an undertaking on appeal as prescribed in such Code”; that said Jacobs and Easton desired to appeal from said judgment against them, and to stay the execution thereof pending such appeal, but were unable to procure sureties upon their undertaking on such appeal residing in the state of New York, and said Jacobs and Easton (hereupon requested this plaintiff to accept as sureties on such undertaking the defendants hereinbefore named, who then resided in the state of California, and the plaintiff thereupon agreed to accept the defendants as such sureties, notwithstanding they resided in the state of California, and to waive the right to sureties residing within the state of New York; and thereupon, on the 10th day of August, 1892, the said defendants, at the request of the said Jacobs and Easton, and for the purpose of perfecting such appeal and obtaining a stay of execution, did make, execute, and deliver, within the state of California, their undertaking on appeal. The condition of the bond was that the appellants “pay all costs and damages which may be awarded against the appellants on said appeal, not exceeding five hundred dollars, and do also*undertake that, if the judgment so appealed from, or any part thereof, is affirmed, or the appeal dismissed, the appellants will pay the sum recovered or directed to be paid by the judgment, or the part thereof as to which judgment shall be affirmed.” It further appears from the complaint that after'the 9xecution of the undertaking, to wit, on or about the 10th day of September, 1892, the plaintiff stipulated in writing that it would not except to the sureties thereon, and that such undertaking might be filed in said superior court of said city of New York; that no exception should be taken by the plaintiff to the form of the undertaking, or the time of the filing, or its justification of the sureties, and that such undertaking should operate as a stay of proceedings; that thereafter on the same day the said under
It is contended by counsel for defendants that the cause of action' set forth in the complaint as above stated is barred by the provision of the statute of limitations of this state as contained in subdivision 1 of section 339 of the Code of Civil Procedure of this state, which provides that the period prescribed for the commencement of “an action upon any contract, obligation, or liability, not founded upon an instrument in writing, or founded upon an instrument of writing executed out. of the state,” is two years. In support of this contention it is maintained that the present action is “founded upon an instrument in writing executed out of the state”; that, although signed in California, the undertaking was delivered in New York; that delivery is as essential to the validity of the execution of an undertaking as signing and justification of the sureties are; and that the undertaking sued on in this case can only be deemed to have been fully executed in law when the contract was given life by delivery in the state of New York. As this action was not begun until December 22, 1897, and the judgment of the general term of the superior court of the city of New York was made and entered on January 15, 1894, more than two years had elapsed before the bringing of this action; and, if the contention of counsel for the defendants be sound,
The pendency of the appeal from the general term of the superior court of the city of New York to the court of appeals, as set forth in the complaint, could not operate to extend the statute of limitations. The bond was given to abide the decision, on appeal, of the general term of the superior court of the city of New York; not of the court of appeals. It did not purport to relate to the court of appeals. The sureties did not obligate themselves to answer any costs and damages to be adjudicated by that court. Their liability was limited strictly to the decision and judgment of the general term of the superior court of the city of New York. In the following cases in New York it has been held that it is no defense to a statute of limitations on a suit based upon an undertaking to stay proceedings on appeal to the general term of the superior court that the defendant had since appealed to the court of appeals. Burrall v. Vanderbilt, 6 Abb. Prac. 70; Heebner v. Townsend, 8 Abb. Prac. 234.
There is nothing in the other objections presented by counsel for plaintiff. Upon the whole of the case, I conclude that the undertaking sued upon in the case at bar was executed, in law, in the state of New York, and that any action thereon in this state against the sureties is barred by the provisions of section 339 of the Code of Civil Procedure of this state. The complaint will be dismissed, and it is so ordered.