
    FERRIS v. TANNEBAUM.
    
      N. Y. Common Pleas;
    
    
      General Term, May, 1891.
    
      Undertaking ; action on.] A right of action upon an undertaking on arrest arises upon the vacatur of the order of arrest by an ■order of the general term. An action upon the undertaking is properly then commenced, and the pendency of an appeal to the court of appeals subsequently perfected and not set up ■ . by supplemental answer, constitutes no defense, especially where it appears at the trial that such appeal has resulted in an affirmance of the order by the court of appeals.
    
      The same.] Service of a notice of appeal to the court of appeals, without the undertaking necessary to perfect the appeal, is ineffectual to affect the finality of the decision vacating the order of arrest, so as to defeat the action on the undertaking.
    Pleading.] In a common law action the rights of the parties must be determined as they existed at the commencement of the action except so far as the situation has been since changed unfavorably to the plaintiff’s claim, either by his own act or by operation of law. It is, therefore, not competent to prove as a defense an appeal which was not perfected until after service of the answer, although such answer contains a general allegation, which, if the facts had then existed, might have presented the defense.
    Appeal from a judgment, rendered upon a trial by the court. The action was brought by Francis J. C. Ferris against Adolph Tannebaum and Alexander Samuels, sureties upon an undertaking on arrest given pursuant to section 559 Code of Civil Procedure.
    It was claimed that the defendants had-duly appealed to the court of appeals from the orders vacating the orders of arrest, and that so the action was premature. A motion to vacate the orders of arrest was denied at special term, but on appeal to the general term the orders of the special term were reversed, and the orders of arrest vacated. The orders of the general term vacating the orders of arrest were entered April 2, 1889. This action was commenced April 4, ■1889. On May 29, 1889, the defendants appealed to .the court of appeals from the orders of the general term, but no undertaking on appeal was given until December 8, 1890. The answer was served August ■6, 1889. The action was tried January 21, 1891. The orders of the general term were affirmed by the court of appeals January 20, 1891.
    
      Franklin Bien, for appellants.
    
      Andrew Gilhooley, for respondent.
   Pryor, J.

On the trial the learned judge, after admitting in evidence the notice of appeal to the court of appeals—served before the answer—excluded evidence of the undertaking on appeal, executed after the answer, on the ground that it should have been pleaded by supplemental answer ; and then, because the defendants had failed to prove a supersedeas by the pendency of an appeal, the court gave judgment for the plaintiff. Whether those rulings were correct is the only question for adjudication.

The conduct of the court in receiving evidence of the notice of appeal and rejecting evidence of the undertaking on appeal, is "criticized for inconsistency; but there is obviously no inconsistency in admitting matter occurring before answer, and excluding matter of defence occurring after answer.

Equally by the terms of the code and of their undertaking, the defendants were not liable to action before it was “ finally decided that the plaintiff” (in the original suit) “ was not entitled to an order of arrest.” But, until appealed from, the order of the general term vacating the orders of arrest, was a final decision against the right to arrest. Had an effectual appeal been taken, then the finality of the decision would have been deferred till the determination of the appeal (Musgrave v. Sherwood, 76 N. Y. 194, 195 ; Wettig v. Moltz, 45 Super. Ct. 392). But, when the action was commenced, no appeal; even by notice, had been taken; and at that time the order of the general term stood as. a finality. The action was then well brought, though subject to bar or abatement should an effectual appeal be taken.

The notice of appeal, to the court of appeals from the general term was served after the action was commenced, though before answer. In an equitable action, matter occurring after suit commenced but before answer, may be pleaded, as of right; and the reason is. that in such action costs are discretionary, and if the defendant prevails, notwithstanding there was good cause to sue, the court can charge him with costs.. But, in an action of a legal nature, the right of the parties must be determined as they existed at the commencement of the action, except so far as the situation has been since changed unfavorably to the plaintiff’s, claim, either by his own act or by operation of law— the reason being that, in a legal action, the statute gives costs ; and as they ought not to be charged on a plaintiff who had good ground to sue, the defendant should get leave to plead, so that the court may impose terms (26 Abb. N. C. 22, 24; Wisner v. Ocumpaugh,, 71 N. Y. 113; Styles v. Fuller, 101 Id. 622). The matter is then pleaded “ to the further maintenance of the action” (Carpenter v. Bell, 19 Abb. Pr. 258, 263). Hence, although the notice of appeal was served before-answer, it is questionable if it were properly pleaded, or if it could have been pleaded even by supplemental answer.

But, waiving the point, the answer of notice of appeal was nugatory. An appeal to the court of appeals from an order, as from a judgment, until undertaking given is a mere nullity, and so is ineffectual to affect the finality of the decision from which the appeal is taken (Code, § 1326, Cowdine v. Teal, 67 N. Y. 581; Architectural Works v. City, 85 Id. 652; Raymond v. Raymond, 76 Id. 106; Kelsey v. Campbell, 38 Barb. 238 ; Matter of Dumesnill, 47 N. Y. 667; Benedict v. Thayer, 82 Id. 610, where said, “ where no undertaking is given, no appeal is pending.” It follows, therefore, that even after the notice of appeal, the order of the general term vacating the orders of arrest,, was still a final decision.

Eventually, however, on December 8, 1890— more than a year after answer—an undertaking was. given and the appeal perfected. Then for the first time the order of the general term ceased to be a final decision. But the matter, even if it might have been, was not presented by supplemental answer ; and only by supplemental answer, allowed by the court, could it be presented as a defense to the action (Code, § 544; Hall v. Olney, 65 Barb. 27; Styles v. Fuller, 101 N. Y. 622; Williams v. Hernon, 16 Abb. Pr. 173; Matthews v. Co., 3 Robt. 711; Wettig v. Wotz, 45 Super, Ct. 389).

Counsel for the defendants argues that the appeal perfected in December, 1890, was admissible in proof of the defence pleaded in August, 1889. True, the answer then served did set up the defence that the order of the general term was not final, and that so the action was prematurely brought. But an allegation that the action was arrested by an appeal in April, 1889, is not established by proof that it was arrested by an appeal in December, 1890.

Evidence of a perfected appeal on April 4, 1889, would have been relevant ar d effectual to make good the defence pleaded, but not so evidence of am appeal perfected December 8, 1890. Moreover, the latter defence, arising after issue joined, could have been presented, if at all, only by supplemental •answer.

To sustain their contention the appellants rely, in "vain, on Briggs v. Bowen, 60 N. Y. 454. That action was trespass quare clausum, and the answer alleged that the locus in quo was a public highway. On the trial, plaintiff showed an order discontinuing the highway, ;and defendant met this proof by evidence of a reversal ■of the order after the trespass. Answering the argument of the plaintiff that the defendant could not avail himself of the reversal without pleading it, the court say: “ There was no occasion for pleading it. The ■order was not alleged in the complaint; The plaintiff 'relied upon the order to prove his title by showing that the highway had been discontinued. The defendant ■had a" right to meet this claim by showing that the order relied upon by the plaintiff had been reversed. Furthermore, it does not appear that the point was taken at the trial that this proof was inadmissible under the pleadings, and that of itself is sufficient ground for •not entertaining it here.” Criticism is not needed to •exhibit that the decision cited has no bearing upon the •case at bar.

Conceding for argument, however, that without being pleaded, the defence was available to the appellants, it was still ineffectual to defeat the judgment. When the action was brought, it was well brought; because, there being then no pretence of an appeal, the order of the general term was at the time a final decision. When the action was commenced, the cause ■of action was complete—only, the further maintenance of the action was liable to be arrested by a subsequent appeal. But; the defendants themselves gave in evidence the affirmance of the order of the general term by the •court of appeals ; and so it appeared at the trial that the appeal had been determined and determined adversely to the defendants. Hence, there was no obstacle to the prosecution of the action, and no pending appeal to defeat a recovery by the plaintiff. When an action is-well brought, and the plaintiff is confronted by nodefence upon the trial, judgment for him is an inevitable consequence. This is not the case of an action essentially defective when commenced, and sought to be reinforced by subsequent matter ; but of an action duly begun and obstructed pendente lite. The obstruction gone, judgment must follow. “ The fact that plaintiff’s right of action was divested after commencement of the action by his bankruptcy is not an available defence, if before defence pleaded, he re-acquires the right of action by purchase from the assignee.”' (26 Abb. N. C. 23).

Judgment affirmed, with costs.

Allen and Bischoff, J.J., concurred.  