Lead Opinion

The undertaking of the defendant was that if, on the appeal of Ballard to the Cortland County Court from the judgment rendered against him by the Justice's Court "judgment be rendered against the said appellant on said appeal, and execution thereon be returned unsatisfied in whole or in part, I will pay the amount unsatisfied." This was the undertaking required by statute to be given on such an appeal, and adding the words "on said appeal" to the words "judgment be rendered against said appellant" was nothing more than the statute plainly implied, for it was only the judgment which should be rendered against the appellant which the surety undertook in any event to pay. In this case, by law, the appeal made a new trial in the County Court a matter of necessity, and it is obvious that the undertaking had reference to a judgment rendered against *Page 383 the appellant on the new trial in the County Court. It appears also to be settled that the judgment which the surety undertakes to pay is the one finally rendered against the appellant on the appeal. (Smith v. Crouse, 24 Barb., 433; Gardner v.Barney, 24 How. Pr., 467; Robinson v. Plimpton,25 N.Y., 484.) The circumstance that the final trial of the case on the appeal was had in the Supreme Court, does not affect the question, as it was transferred to that court for trial in pursuance of a statute by reason of the disqualification of the county judge of Cortland county. It was the same case tried in pursuance of law on the same appeal, and came within both the letter and spirit of the undertaking. The execution and levy on the judgment first recovered in the County Court cannot aid the defendant, for that judgment was reversed in the Supreme Court, and as a matter of course the execution and levy fell with it, and there was no breach of the undertaking given by Lathrop and Quail on the appeal to the General Term of the Supreme Court, which resulted in the reversal above referred to, and it cannot be said to have been given to supersede the undertaking given by the defendant on the appeal to the County Court. If the judgment of the County Court had been affirmed on the appeal to the Supreme Court, a different question might have arisen. No notice of the judgment, execution or return was required to be given before suit brought. The defendant became liable when the judgment was finally recovered against the appellant, and an execution thereon returned unsatisfied and the return of the sheriff made without collusion or fraud is conclusive, and cannot be contradicted in this action by evidence tending to show that the defendant named in it had property, out of which it might have been satisfied.

It thus appears that there was no defence to the plaintiff's action, and the judgment of the Supreme Court must be affirmed, with costs.

Concurrence Opinion

This is an action upon an undertaking on appeal given by Hay as surety. It was executed in an action in which judgment had been recovered before a justice of *Page 384 the peace, in which Humiston was plaintiff, and one William Ballard was defendant.

The judgment was rendered on 18th April, 1867, for eighty-five dollars and twenty-five cents. The defendant in that action appealed, and the present defendant executed an undertaking on the appeal, in accordance with section 356 of the Code.

The future proceedings, briefly stated, are as follows: The appeal to the County Court resulted in a judgment in favor of the plaintiff, this judgment was reversed by the Supreme Court; the cause was then certified into the Supreme Court under section 30 of the Code, was there tried at Circuit, and judgment perfected in favor of the plaintiff. An execution having been issued upon the judgment against Ballard's property, was returned unsatisfied.

The section of the Code under which the undertaking was issued provides "that it shall be to the effect that if judgment be rendered against the appellant, and execution thereon be returned unsatisfied, in whole or in part, the sureties will pay the amount unsatisfied."

It will be observed that the language of this section is very broad. It refers both to the judgment and the execution to be issued thereon. It manifestly looks to the final judgment in the cause. In this respect, it is much more comprehensive in its terms than the three hundred and thirty-fifth section, which simply provides that if the judgment appealed from be affirmed, etc., the appellant will pay the amount of the judgment. It might plausibly be urged in that case that the undertaking would not cover a series of new trials. In the case at bar, the defendant covenanted for the final result of the action and the payment of the debt, if an execution was returned unsatisfied. It is not required that any particular judgment be affirmed. The condition simply is, that "if judgment be rendered," etc. This plainly means any final judgment which may be rendered in the cause, upon which an execution may issue.

The principle of the cases of Robinson v. Plimpton (25 N *Page 385 Y, 484; Doolittle v. Dininny (31 id., 353); Gardner v.Barney (24 How. Pr., 567); Liston v. Dodge (66 Barb., 125) are applicable, and the judgment of the court below should be affirmed.

All concur.

Judgment affirmed.