Wolfkiel v. Mason

16 Abb. Pr. 221 | New York Court of Common Pleas | 1863

Brady, J.

The amendment to section 348 by the act of 1862 (Sess. Laws, 1862, p. 846) applies as well to appeals theretofore as to those thereafter taken. The act provides that “ in case an appeal has been taken or shall be taken to the Court of Appeals from an order or judgment of affirmance,” no action shall be commenced or recovery had upon any undertaking given or to be given in pursuance of the provisions of the section referred to until after the determination of such appeal. The words “ has been,” “ no action shall be commenced or recovery had upon any undertaking given or to be given,” show clearly that it was the design of the amendment to suspend the remedy of the respondents upon the undertaking filed upon the appeal in the court below. The respondents were not deprived of any right by subjecting them to the provisions of the amendment. Their remedy was suspended only. The power of the Legislature to do this cannot, be questioned. (Stocking a. Hunt, 3 Den., 274; Sullivan a. Brewster, 1 E. D. Smith, 681; Miller a. Moore, Ib., 739.)

The interference of the Legislature was just. The appeal to the Court of Appeals was imperfect if an action upon the judgment of affirmance against the sureties and such appeal could proceed, pari passu, together. It is said, however, that the security provided by the amendment of section 335 was not given in this case, and that the amendment of section 348 must be supposed to contemplate such security. The language of the statute does not warrant such a conclusion. The act must be regarded in reference to the law existing at the time it was passed, inasmuch as it relates in express language to an appeal which “ has been taken.” The language is retrospective, the object of the Legislature being to secure the advantages of appeals which had then been taken, and to arrest proceedings upon the undertakings which had been given and upon which actions had been brought. The additional security of section 335 is only to the undertaking on the part of the sureties to pay the judgment if dismissed. The intent was doubtless to make the obligation one to pay the judgment if the appeal was dismissed, but whether that be so or not it is not necessary here to decide. It is sufficient to say that even if the undertaking were in accordance with section 335 as amended, it is doubtful whether the security would be better than with the form of the undertaking which was given on the appeal in this case.

I think the order appealed from should be affirmed, with $10 costs.

Daly, F. J., and Hilton, J., concurred.