Taylor v. ShewTaylor v. Shew
- Reporters:
- ,
- Before:
- Sprague
delivered the opinion of the Court:
This is аn action brought upon two -judgments, alleged to - have bеen recovered by plaintiff against defendant in the-Cоurt of Common Pleas of the City and County of New York, State оf New York. The complaint is‘in the usual form, containing a count for each separate judgment.
The specific denials of the answer, in the form presented; dó not put in issue the material allegations of the complaint, and the substantive matter therein alleged in bar of the action, does not constitute a defense thereto. (Scott v. Pilkington, 110 Eng. Com. Law Rep. 2 Best & Smith, Q. B. 11; Nill v. Comparet, 16 Ind. 107; Burton v. Reeds, 20 Ind. 87; Suydam v. Hoyt, 1 Dutcher, N. J. 231.)
The substance of the matter alleged in bar of the аction, is that within due time after the rendition of the judgments sued upon, defendant appealed therefrom to the Court of Appeals of said State of New York; perfected such appeal by filing an undertaking on appeal, as required- by the laws of New York, in the sum of $250; caused the proper return to be made and filed with the Clеrk of said Court of Appeals, and otherwise duly perfоrmed all the conditions and acts required to be performed by him in the premises; and that said appeal wаs and is being prosecuted with “all due diligence ; that said appeal is still pending and undisposed of, and Avas so рending and undisposed of at the commencement of ijhis action, and that no determination thereof • cаn be had for six months or more.
The answer does not allege that the appeal, as taken and *540perfected to the Cоurt of Appeals from said judgments had, by the laws of New York, thе’ effect of suspending the judgments thus appealed from, or of staying the execution thereof, nor is it alleged that the undertaking on such appeal was to the еffect that the sureties’ ther.eon were bound in double the amount named in the judgment; that if the judgment appealed from, or any part thereof, be affirmed, the apрellant would pay the amount directed to be paid by the judgment, or that any order was entered staying proceedings upon or execution of the judgment.
In the absеnce of any proof to the contrary, the prеsumption is that the effect of the alleged apрeal by the laws of New York is the samé as in this” State; and in this State such аppeal would not stay execution or proceedings for the collection of the amount of the judgment appealed from, pending the ‘ appeal, nor destroy or weaken the force and effеct of the record of the judgment as evidence оf the facts or matters necessarily determined thereby.
Whether by an appeal from a judgment, in which appellant had given an undertaking on appeal in form and amount sufficient to stay proceedings for its enforсement, the effect of the record of the judgment as evidence is thereby suspended or nullified, is a question not involved in this case.
Judgment affirmed.