
    McElroy v. Munford et al.
    
    
      (Supreme Court, General Term, Second Department.
    
    February 11, 1891.)
    Appeai,-Bond—Liability or Sureties.
    Plaintiff obtained a judgment against a railroad company in the supreme court for §3,659.08, which was affirmed" by the general term, and judgment entered for $122.97 costs. On appeal to the court of appeals the undertaking, signed by defendants, recited the judgment of the general term against the railroad company for §132.97, costs of affirmance, and bound defendants “to pay all costs and damages which may be awarded against it [appellant] on said appeal, not exceeding §500, ” should the judgment be affirmed or the appeal dismissed. Code Civil Proc. N. Y". § 1832, provides that, “where the judgment or order from which an appeal is taken to the court of appeals affirms a judgment or order, * * * the undertaking must be the same as if the judgment or order from which the appeal is taken was to the same effect as the judgment or order so affirmed. ” Held, that the undertaking did not require defendants to pay the original judgment, but only the judgment for costs.
    Appeal from circuit court, Kings county.
    Action by Samuel McElroy against Henry Munford and others. There Was judgment for plaintiff, and defendants appeal.
    Argued before Barnard, P. J„ and Dykman, J.
    
      Leslie W. Bussell, for appellants. T. C. Cronin, for respondent.
   Dykman, J.

The plaintiff in this action recovered a judgment against the Brooklyn Under-Ground Railroad Company in the supreme court in June, 1887, for the sum. of $3,659.08, which was affirmed in. the general term, and' judgment was entered upon such affirmance for $122.97 costs. Upon appeal to the court of appeals, the following undertaking was executed by the defendants in this action:

“Whereas, on the twelfth day of December, 1887, in the New York supreme court, county of Kings, Samuel McElroy, the above-named respondent, recovered a judgment against the Brooklyn Under-Ground Railroad Company, the appellants, for the sum of $122.97, being costs of affirmance, and with interest thereon from that date; and the said appellant, feeling aggrieved thereby, intends to appeal therefrom to the court of appeals: Now, therefore, we, Henry Munford, residing at No. 218 Quincy street, in the city of Brooklyn, and John French, residing at No. 469 Clinton avenue, in Brooklyn city, do hereby, pursuant to the statute in such case made and provided, jointly and severally undertake that the appellant will pay all costs and damages which may be awarded against it on said appeal, not exceeding five hundred dollars, and do also undertake that if the said judgment so appealed from, or any part thereof, is affirmed, or the appeal is dismissed, the appellant will pay the sum recovered or directed to be paid by the judgment, or the part thereof as to which judgment is affirmed.

“Dated December 21, 1889. John Frenoh.

“Henry Munford.”

The judgment of the general term was affirmed by the court of appeals, and a judgment was entered upon such affirmance for $121.72, for costs in that court, in favor of the plaintiff against the defendants. This action was commenced upon the undertaking so given upon the appeal to the court of appeals, and the plaintiff obtained a judgment for the amount of the original judgment, together with the subsequent judgments for costs on the appeals, and the defendants have now appealed from such judgment. The question presented is whether the plaintiff can hold these defendants, who were the sureties in the undertaking on the appeal to the court of appeals, for the amount of the original judgment in his favor, or only for the amount of the judgments of the general term and the court of appeals. As the order appealed from affirmed a judgment which directed and required the payment of a sum of money, the form of the undertaking on such appeal is prescribed by section 1332 of the Code of Civil Procedure, as follows: “Where the judgment or order from which an appeal is taken to the court of appeals affirms a judgment or order to the effect specified in either of the last five sections, the undertaking must be the same as if the judgment or order from which the appeal is taken was to the same effect as the judgment or order so affirmed;” that is, it must be in the same form as if the judgment appealed from rendered a judgment or was a judgment similar to, or to the same effect as, the one which it affirmed. The undertaking must be so drawn as to secure the payment of the judgment affirmed by the judgment from which the appeal is taken to the court of appeals, or, in other words, the sureties in an undertaking upon an appeal to the court of appeals must be made liable for the payment of the original judgment, and such liability must be imposed by the terms of the instrument. This undertaking, as we have already seen, recites the recovery of a judgment in the supreme court by the plaintiff against the Brooklyn Under-Ground Railroad Company for $122.97, being costs of .affirmance, with interest, and the grievance of the defendant thereby, and its intention to appeal therefrom to the court of appeals, and that, therefore, the defendants, pursuant to the statute, undertake that the appellant will pay all costs and damages which may be awarded against it on such appeal, not exceeding $500, and also undertake that, if the said judgment so appealed from or any part thereof is affirmed, or the appeal is dismissed, the appellant will pay the sum recovered or directed to be paid, or the part thereof as to which judgment is affirmed. There was but one judgment mentioned which the defendants undertook to pay in the event of affirmance, and that was the judgment for costs of the general term of $122.97, and there is no principle upon which their liability can be extended beyond the terms of the instrument which they signed. That instrument in no way mentions or refers to the original judgment, and they never undertook its payment. These views are in accordance with the expressions in the case of Morss v. Hasbrouck, 10 Abb. N. C. 407, and Briggs v. Brown, 13 Abb. N. C. 481, and are not hostile to the case of Goodwin v. Bunzl, 102 N. Y. 224, 6 N. E. Rep. 399. The judgment should be reversed, with costs.  