The undertaking on which this action is brought is set out at length in the complaint. After reciting the recovery of judgment for $1,801.33 in favor of these plaintiffs against Hoffman and McDonald, executors, and the intention of the judgment debtors to appeal therefrom, it provides, among other things, that the defendants herein will, if the judgment is affirmed, "pay the amount directed to be paid by said judgment * * * * * and all damages and costs which shall be awarded against the appellants upon the appeal."

Upon the trial, the execution of the undertaking was proven, and also that the judgment appealed from was in all respects affirmed, with costs. Then happened, the contingency on which the defendants' liability depended; and although it should be conceded that the original judgment could have been enforced against the defendants therein, only to the extent of assets in hand, after payment of prior claims, the concession would not aid the defendants here. Their promise or undertaking was upon sufficient consideration, and by reason of it the judgment *Page 412 creditors were prevented from pursuing such property as might be in possession of the judgment debtors, or marshaling the assets; they cannot, therefore, successfully urge that the judgment could not have been collected. The considerations now advanced for that purpose, and also set out in the answer, might have availed upon an application to the court below to dispense with or limit the security to be given upon appeal (Code of Procedure, § 336), but after an unsuccessful appeal, cannot avail against the security in fact given (Knapp v. Anderson, 71 N.Y. 466; Piercy v.Piercy, 1 Ired. Eq. 214), and which may well be construed as an admission of the possession of sufficient assets to pay the judgment. (Yates v. Burch, 13 Hun, 622.)

If the judgment against the executors (the one appealed from) had been paid, a different question would be presented, and one which would render this appeal successful. (Wehle v.Spellman, 75 N.Y. 585.) But the answer does not go to that extent. It is also said by the appellants, that they were brought into court against the prohibition in section 348 of the Code of Procedure; that no such action "shall be commenced * * * until ten days after the service of notice on the adverse party of the entry of the order or judgment affirming the judgment appealed from." It is not denied that the complaint sufficiently avers the service of such notice; but the claim is, that after entry of the judgment, and notice thereof, the sum of costs was reduced upon retaxation, and no subsequent notice given. The cases cited by the appellants do not show its necessity. In Porter v.Kingsbury (5 Hun, 597, affirmed 71 N.Y. 588), and Rae v.Beach (76 id. 164), no notice whatever was given, and its omission was held fatal. On the other hand, in Wilson v.Palmer (75 N.Y. 250), upon facts quite similar to those before us, it was held that the time to appeal ran from the entry of judgment containing the sum of costs as first adjusted. The appellants object, that that this was under another statute. (Old Code, §§ 331, 334.) This is so; but, as will be seen, its provisions are broader than those under review, and the reasoning of the court in that case *Page 413 may well include and be decisive of this. In neither case was the judgment in fact changed, although in both, the costs were reduced; but under the statute governing the rights of the parties here, it would seem to be sufficient to give notice of the entry of the order or judgment of affirmance, without stating the amount of costs awarded; while under the other statute, when notice is required, it must be of the order (§ 334), or of the judgment or order (§ 331); not of the entry merely. The object of the different provisions is manifest. In the one case, to notify the appellant that the contingent obligation of his surety has become fixed; in the other, to give the party such information of the terms or amount of the order or judgment as will enable him to state it in the undertaking required upon appeal.

The argument, as well as the decisions, in Sherman v. Wells (14 How. Pr. 522) and Champion v. Plymouth CongregationalSociety (42 Barb. 441) apply only to the latter case. In the one before us, the undertaking is two-fold: to pay, first, the amount of the judgment appealed from, if affirmed; and second, the damages and costs awarded upon the appeal. The notice required (§ 348) is of the entry of the judgment or order of affirmance only, and not of the costs or damages awarded. There is a difference in the phraseology and the object of the two statutes, and the construction applied to one need not be extended to the other.

The judgment appealed from should be affirmed.

All concur.

Judgment affirmed.