146 N.Y. 251 | NY | 1895
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *253
The undertaking bound the surety in case of the ultimate affirmance of the judgment. Its liability was not terminated by the reversal of the judgment by the General Term, but continued and was enforcible in case, on appeal to this court, the order of the General Term should be reversed and the original judgment affirmed. (Robinson v. Plimpton,
It was held in Conner v. Reeves (
In the present case the undertaking related to a specific matter, namely, the action of the court, and the principal consented to judgment against him at the instance presumably of his adversary, although the General Term had determined that the judgment which he consented should be reinstated was without legal validity. The point that the defendant was indemnified for becoming surety by Chu Fong, and if compelled to pay the judgment has in its hands a deposit out of which it can obtain reimbursement is irrelevant. The case turns upon the true construction of the contract. We hold that the pro forma affirmance of the judgment against Chu Fong, based exclusively on the stipulation of the parties and without any hearing or adjudication by this court on the merits, was not an affirmance within the meaning of the undertaking.
The judgment should be affirmed, with costs.
All concur.
Judgment affirmed. *257