Lewin v. Towbin

64 N.Y.S. 740 | N.Y. App. Div. | 1900

Ingraham, J.:

■ This action was commenced in the Municipal Court of the' city of Mew York and a judgment was obtained by the plaintiffs against the defendant on. December 30, 1899. Thereafter the defendant appealed to the Supreme Court and filed with the clerk of The ■ Municipal Court an undertaking, a copy of which is not annexed to the record, but it is alleged to have been “ regular upon its face.”' It appears that no copy of this undertaking was served upon the plaintiff’s attorney, but was served upon the sheriff of the county of Mew York.. The plaintiff’s attorney, having received notice of this undertaking from the sheriff# examined the same in the office of the clerk bf the Municipal Court, and, "on January" 4, 1900, caused a notice of exception to the sureties upon the undertaking to be served on the defendant’s attorney. The plaintiffs’ attorney received from the defendant’s attorney on January 13, 1900, a paper purporting to be a notice that the. sureties upon the undertaking would justify on Thursday, January 18, 1900, before a justice of the Municipal, Court, and that an application would then be made to appuove the undertaking." This notice was returned to the defendant’s "attorney with a notice that the same was served too late, and that the plaintiffs elected to treat the same-ás a nullity. The plaintiffs then proceeded as if no undertaking had been, given. They procured a transcript of the judgment, and .filed the same in the office of the clerk of the county of Mew York, and procured from such clerk an execution which they caused to be issued to.the sheriff, who proceeded to make a levy under, it. ■ The defendant "then made a motion in the District Court to vacate this execution, which motion. was denied by the justice of the District Court upon the. ground -of want of power, but he granted leave to apply to the Supreme Court, whereupon this motion was made to vacate the execution as having been issued while the proceedings of. the plaintiffs were stayed by reason of the undertaking, which motion was. granted, and from an order granted upon that- motion the plaintiffs appeal.

Upon filing the transcript of the judgment with the clerk of the County of Mew York, the judgment “ is deemed "to be a judgment of the supreme court,” and “an execution upon a judgment so docketed, may be issued, at the option of the judgment creditor, either by the county "clerk, directed to the sheriff, or by the clerk of the district court, directed to a marshal,” (Code Civ. Proc. § 3220.) The judgment having thus, for the purpose of enforcement, become a judgment of the Supreme Court, the plaintiffs had the right to have an execution issued by the clerk of the court, unless their proceedings were stayed by the giving of the undertaking before referred to. By the charter of the city, of New York (Laws of 1897, chap: 378) section 1367, it is provided that “An appeal from a judgment rendered in the Municipal Court of The city of New York may be taken to the Supreme Court in the cases and in the manner prescribed in articles first and second of title eight of' chapter nineteen of the Code of Civil Procedure.” These articles include the provision for giving security upon an appeal. By section 3050 of the Code it is provided that “ If the appellant desires a stay of execution, he must give a written undertaking, executed by one or more sureties, approved by the justice who rendered the judgment, or by a judge of the appellate court. * * * A copy of the undertaking, with a notice of the delivery thereof, must be served with the notice of appeal and in like manner. Section 1335 of this act applies to such an undertaking.” Section' 1335 provides •that the “ attorney for the respondent may, within ten days after the service of a Copy of the undertaking, with notice of the filing thereof, serve upon the attorney for the appellant, a written notice that he excepts to the sufficiency of the sureties. Within ten days thereafter, the sureties, or other sureties in a new undertaking to the same effect, must justify before the court below, or a.judge thereof, or a referee appointed by the same or a county judge. At least five days’ notice of the justification must be given. * * ■* The effect of a failure so to justify and procure an allowance is the' same as if the undertaking had not been given.” It is quite clear that the defendant failed to comply with this section. No copy of the undertaking was served upon the plaintiffs’ attorney. • Assuming, however, that a failure to serve a copy of the undertaking was waived by the plaintiffs’ attorney serving a notice that he excepted to the sufficiency of the sureties, the defendant was then required within ten days thereafter to cause the sureties upon the undertaking or other sureties to justify before the court, notice of such justification to be given at least five days before the time at which the sureties were to appear to.justify. The statute does not require that the notice must be served within ten days, but that the sureties must ¡justify within ten days; and, if they failed so to justify, that is, to justify within ten days, the effect was the same as if -'the undertaking had not been given. The defendant was advised of the fact that the notice was served too late by its return to him by the plaintiffs. The plaintiffs were not bound to attend in court upon a: day named,, as they were ■ entitled to treat the undertaking as void upon the failure of the defendant to procure the justification of the sureties within the ten days specified. The learned judge below seems to have been impressed with the thought that there had been an adjudication by the Municipal Court as to the regularity of the proceeding and that the justification was in time ; but this, it is quite clear, was error. The justice had jurisdiction to determine whether the sureties were sufficient if they appeared before him within ten' days after service of the notice excepting to the sufficiency of the sureties. If, however, they did not appear to justify within the ten days, the statute provided the penalty, and that Was, that the action was to proceed as if no undertaking had been given. An allowance of the undertaking by default after the ten days had expired did.not affect this express provision of the Code and make valid what 'the Code said was a void undertaking.

We think that there was no stay of the proceedings and that, the plaintiffs had the right to issue the execution, and it was error to vacate it.

It follow's that the order appealed from must be reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs.'

Van Brunt, P. J.,' Eumsbt, Patterson and Hatch, JJ., concurred. .

Order reversed, with ten dollars costs and disbursements,' and motion denied with ten dollars: coste