35 How. Pr. 487 | NY | 1867
In the year 1850, the plaintiff in this action commenced a suit in the supreme court of this State against Nicholas Miller and Leonard P. Miller. The plaintiff claimed to recover upon a promissory note made by Nicholas Miller, and indorsed by Leonard P. Miller. The maker and indorser, though not jointly liable, were, in pursuance of the provisions of our statute, united as-defendants -in the same action. Such proceedings were had in the supreme court, that, on the 20th day of April, 1858, the plaintiffs herein recovered judgment 'against said Nicholas Miller and Leonard P. Miller, defendants, for the sum of §261.54.
The defendants in that action appealed from said judg
Upon such appeal, this court affirmed the judgment of the supreme court against Nicholas Miller, the maker of said promissory note, and reversed the judgment of the supreme court against said Leonard P. Miller, indorser of said note, and judgment was rendered in his favor (Seacord v. Miller, 13 N. Y. [3 Kern.], 55).
The plaintiff now brings an action upon said undertaking, and avers that the said judgment mentioned in said undertaking was affirmed as to the said appellant, Nicholas Miller, with costs, and reversed as to the said appellant, Leonard P. Miller ; that judgment had been perfected in said supreme court, upon the judgment of said court of appeals; that an execution had been issued for the amount thereof against the property of said Nicholas Miller; that the same had been duly demanded of said Nicholas Miller ; and that the defendants had notice thereof. The defendants denied all the matter set forth in the complaint, and the action was referred to William Kent, as referee, who found all the facts, as stated and set forth in the complaint; 'also, that the amount of said judgment against said Nicholas Miller was §479.42, besides interest; and that the same had not
The only question of a serious nature urged upon us for a reversal of this judgment, is, that as it appears affirmatively that the judgment appealed from was against two defendants, and as it was affirmed only as to one defendant, and reversed as to the other, the event or contingency upon which these defendants agreed and undertook to pay the judgment appealed from, has never happened. They undertook, that if the judgment so appealed from should be affirmed, then the appellants would pay the amount directed to be paid by the said judgment, and all damages which might be awarded against the said appellants on the said appeal.
The defendants contended that the judgment so appealed from has not been affirmed.
There is some plausibility, it must be confessed, in this position, and it has been sustained by a very ingenious and able argument by the counsel for the appellants, and were it an open question in this court, it would be proper to proceed with the discussion of the views suggested.
But, as we understand, the precise question now presented was considered and passed upon by this court in the case of Gardner v. Barney and Butler, decided here in December, 1803—not reported. That was an action upon an undertaking given by the defendants, on an ap
The action in this court, above referred to, against Barney and Butler, was upon the undertaking given on the appeal taken by Ogden and Smith from the judgment against them at special term to the general term ; and the question, as stated by Denio, Ch. J., in the opinion of this court, whether the affirmance of the judgment as to one of the defendants, who were together adjudged to pay a sum of money in the original action, rendered the defendants liable as sureties upon the undertaking.
That question is very carefully and fully discussed by the learned chief judge. And as his views upon this point have never been reported, and are so conclusive upon the point under discussion, and received on that occasion the approval of this court, it is not deemed inappropriate to quote them. Nothing further need be added upon the subject.
Judge Denio said: “The expressions of the undertaking, which provide for the case upon affirmance, only in part, appear to have reference primarily to the amount, and not to the number of persons charged. The language is, that the appellants, in the case of a partial affirmance, will pay the amount directed to be paid by the judgment, or the part of such amount as to which it shall be af
“The decision that the plaintiff is entitled to the amount of money adjudged to him by the special term, is sustained, and the position is upheld, that he is entitled to recover it in action. It was a case in which several damages might fie given against one of the defendants, though the other should be acquitted. This is established by a judgment, affirming the recovery as to Smith alone. The judgment of the special term has, therefore, been affirmed, with a variation, however, in this—that the recovery is to fie satisfied by one, and not by both of the defendants. It is not necessary to depart from the language of the instrument in order to charge the sureties. They are to abide according to the terms of their undertaking.
‘ ‘ There has been an affirmance of the judgment appealed from, and equitable construction cannot fie resorted to for the purpose of charging sureties. But if the case is within the letter of their contract, they are liable, * unless there is something in the spirit and intention of the * instrument, or of the law under which it is given, which exonerates them. The object of the undertaking is to procure an absolute stay of execution, and of all proceedings on the judgment, and such is its effect {Code, §§ 335, 339).
“The motive for requiring the undertaking was to secure to the plaintiff the fruits of the recovery, in case it should fie determined that the allegations of error were unfounded. As the plaintiff is, by the stay of execution, deprived of the immediate resort to the property of the judgment debtor, which the law would otherwise give him, and as his title to the amount adjudged in his favor is prima facie established, it was the policy of the law that he should have security to indemnify him against the possible contingency of the delay. The law assumes the judgment to fie such presumptive evidence of his right,
“Let us take the case of an equity suit against two defendants, and a judgment in a primary court against one, and an acquittal of the other, and cross-appeals by the plaintiff as to the discharge of the one acquitted, and by the defendant, who was held liable; and that the appellate court should hold that both were liable, and give judgment accordingly. It is'plain that the sureties of the defendant, who was held liable by the first judgment, ought not to be discharged, for the complaint of that defendant against the judgment would be shown to be unfounded, and the plaintiff would have incurred the hazard against which the undertaking was intended to protect him; and yet it could not be said that the identical judgment appealed from had been affirmed in every particular. The system of the provisions respecting security on appeals is explained by section 363 of the Code, as to judgments directing the assignment or delivery of documents or personal property. The undertaking in that case was to the effect, that the appellant would obey the order of the appellate court, on the appeal. This shows the general intention of the legislature, that the judgment of the primary court should not be delayed in its execution, unless the party charged should give security to abide the judgment of the superior court, if it should be adverse to him, without requiring that the same identical judgment should be sustained.
“ The nature of the original action, and the liabilities upon which the recovery was had, are not stated in the present case. We may suppose them to have been what we know, by looking into the former case, they were—an alleged breach of duty on the part of defendant, Ogden, as member of the firm, who were the agents of the plain
These are the views of this court, so clearly expressed in a case so analogous to the present, that they must be' regarded as controlling and not open to further discussion. It is impossible to point out any essential difference between the case under review and that in which the preceding opinion was rendered. If ever a case was in quatuor pedibus with another, this is with that. To the same effect is the case of Potter v. Van Vranken (86 N. Y., 619).
In the record now before us it distinctly appears that the original judgment was not against the defendants therein as joint-debtors, but a judgment against them upon the separate liability and contract of each. It was against Nicholas Miller, as maker of the promissory note in suit, and against Leonard P. Miller, as the endorser thereof; and, as was observed in Gardner v. Barney, it might very well be that, under such circumstances, the judgment might well be sustained against one defendant, while the judgment against the other would not be allowed to stand.
Then the appeal, in effect, was in this case, as in that, a several appeal by each defendant; and we are to construe the undertaking to refer to the character of the judgment.it
The finding of the referee, that the remittitur from this court, containing the affirmance of the judgment, was filed in the supreme court by its order, is conclusive of .the facts, and of the regularity of the plaintiff’s proceedings. We have no doubt of the power of the supreme court to direct the order to be entered, "making the judgment of that court, nunc pro tunc (Chautauqua County Bank v. White, 23 N. Y., 347). '
The judgment appealed from should be affirmed, with costs.
Porter, Parker, Wright and Grover, JJ., concurred.
Judgment affirmed.