
    MORSS v. HASBROUCK.
    
      N. Y. Supreme Court, Third Department, Third District;
    
      Special Term,
    April, 1882.
    Again, June, 1883.
    Undertaking on Appeal.—Form.—Sureties.
    The appellant cannot be one of the two sureties required in an undertaking on appeal to the court of appeals, either to perfect the appeal or to stay execution.
    An undertaking to stay execution, on appeal to the court of appeals from a judgment or order of affirmance, must be in such form as to secure the payment of the judgment affirmed by the judgment or order appealed from.
    Section 1333, Code Civ. Pro., does not declare the eSect of the undertaking, but prescribes its form.
    Motion by defendants, who are respondents in an appeal to the court of appeals, to have the undertaking given by the plaintiff and appellant on such appeal declared insufficient.
    A. Schoonmaker, Wm. S. Kenyon and P. Cantine, for motion.
    
      Wm. Lounsbury, opposed.
   Westbrook, J.

The plaintiff by his action sought ‘to make the defendants liable for certain claims which he professed to hold against the Rondout and Oswego Railroad Company. The right of recovery was resisted on various grounds, and the issues in the suit were referred to Charles H. Winfield as sole referee, to hear and decide.

After a long and protracted hearing the referee made a report in favor of the defendants. An order having been made by this court that each of the defendants should have an extra allowance of $500, a judgment was entered on June 5, 1878, against the plaintiff, for the costs of the action, each of the defendants recovering a separate amount for costs.

On appeal to the general term of this court, the judgment entered upon the report of the referee, and the order for the extra allowance, were affirmed with costs, and on November 23, 1881, the judgment roll upon such affirmance was filed, and another and a separate judgment docketed, for $196.11 costs upon the said appeal.

Executions have been issued upon both judgments, and as the plaintiff professes to have appealed to the court of appeals and to have given a proper undertaking to stay the sheriff, the defendants move to have such undertaking declared insufficient and the supposed appeal declared ineffectual. The motion is made upon two grounds: 1. That the undertaking is executed by only two persons, one of whom is the plaintiff himself, and, therefore, it is not executed by “two sureties,” as required by the Code ; and, 2. That it does not in substance conform to the requirements of the Code. The points will be considered in the order just stated.

First. Is the undertaking defective by reason of the fact that it is executed by only two persons, of whom the plaintiff is one ?

The undertakings to be given upon this appeal are prescribed by sections 1326,1327 and 1332 of the Code, and such undertakings (section 1334) “may be contained in the same instrument, or in different instruments at the option of the appellant,” but “each undertaking . . . must be executed by at least two sureties, and must specify the residence of each surety therein.” The question then plainly is, Can the plaintiff be one of the “two sureties” which the law requires? It is not free from difficulty, because, as to an instrument of this character, all persons executing it may be said to be “sureties,” and in some cases a party m:iy be accepted and often is accepted as his own security for the performance of an original promise. Whatever plausibility, however, this argument may, on its first presentation, possess, in a case where there was no previous liability by a person executing the instrument, and which is created solely by such execution—and i ¡1 a case in which it did not become important to decide the question (Warren v. Cohaley), I was rather inclined to the opinion that, on an order of arrest, a plain tiif might be one of two sureties—yet a further examination of the provisions of the Code, and more deliberate reflection, satisfy me that a party appealing from a judgment cannot be one of the “ two sureties ” which the statute requires to perfect the appeal, because,

1. The liability of the party appealing is already fixed by a judgment, and it is security for the payment of that judgment, and the costs and damages which may be recovered against him on the appeal, which the law requires. In other words, the liability of the parry for the past being already declared by a judgment, and the remedy against him for future costs and damages, if recovered, being perfect, the “ two sureties ” are required as an additional indemnity or protection to the respondent. A person who makes an original contraes; or promise may, in one sense, be his own surety for its performance, but where a liability on his part already exists, and the law requires him to give security, it must mean the undertaking of others, for without it, there is no security given. In conformity with this view is the definition by Bouvier, in his Law Dictionary., of the word “ Surety,” which is as follows: ‘1A person who binds himself for the payment of an sum of money, or for the performance of something else, for another, who is already bound for the same.’ ’

2. Section 811 of the Code, which defines the meaning of the various provisions as to the execution of undertakings, shows that the sureties are persons other than the party who is required to give one. The whole framework of the section indicates this, and the reference to both—as, for example, “he need not join with the sureties in the execution thereof unless the provisions require him to execute the same”— maintains the distinction between them.

This objection, that the party appealing cannot be one of the “two sureties” required by the Code, is fatal to the undertaking, and the attempted appeal to the court of appeals is not “effectual for any purpose” (Code, § 1326).

Second. Is the undertaking in the form prescribed by the Code ? The forms of undertakings on appeals from judgments or orders are prescribed by sections 1327, 1328, 1329,1330 and 1331; but when the judgment or order appealed from affirms a judgment or order to the effect specified in either of said sections, then its form is controlled by section 1332, which is as follows: “When 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 so taken, was to the same effect as the judgment, or order, so affirmed.”

There can be no mistake as to the intent of this provision. It requires the undertaking to be in such a form that the payment of the judgment affirmed by the order, or judgment, appealed to the court of appeals, shall be secured. This is not only plain from the language of the section, which, as just stated, requires the undertaking to be “ the same as if the judgment, or order, from which the appeal is so taken, was to the same effect as the judgment or order affirmed”— that is to say, it must be in the same form as if the judgment appealed from did itself render a judgment .similar to the one which it affirmed—but its object and meaning are unfolded in Mr. Throop’s note to the section. In that note he states that he intends to Carry out thfe decision in the court of appeals in Hinckley v. Kreitz (58 N. Y. 583), which was that the sureties upon an appeal to that court were primarily liable upon the original judgment, and became security to the sureties upon the undertaking given on appeal to the general term (see 58 N. Y. 590, 591). To accomplish the result which Mr. Tiiroop says he intended, it is manifest that the undertaking given upon this appeal must be in such a form that the payment of the original judgment is assured thereby, provided such appeal result in an affirmance thereof. Does the undertaking profess to do this %

.By the recital in the commencement of the instrument, which immediately follows the title of the action in which it is given, it is stated: “Whereas, on the 80th day of November, 1881, in the supreme court, the above named respondents recovered a judgment against the above named appellant for one hundred and ninety-two dollars and eleven cents, on the appeal from the judgment and the order granting an extra allowance for costs,” &c. In other words, it states that a judgment for a specific sum of - money has been recovered, which was for costs upon the affirmance on appeal of a previous judgment and order. Having declared this fact, and averred that “the above named appellant being aggrieved thereby intends to appeal therefrom to the court of appeals,” therefore, the persons named “undertake that the said appellant will pay all costs and damages which may be awarded against him on said appeal, not exceeding five hundred dollars ; and do also undertake, that i£ the said judgment so appealed from, or any part thereof,-be affirmed, or the appeal be dismissed, the said appellant will pay the amount directed to be paid by the said judgment, or the part of such amount as to which the said judgment shall be affirmed, if it be affirmed only in part, and all damages which shall be awarded against- said appellant on the said appeal.”

Looking at the recital in the beginning of the undertaking, which describes a judgment for costs and the promise to pay “the said judgment,” or a “part of such amount,” in certain contingencies, it is obvious that security has only been given for the payment of the judgment recovered for the costs on the affirmance, and not for the original judgment which was affirmed at the general term. In short, to repeat again the language of section 1332, the undertaking is not “the same as if the judgment or order, from which the appeal is taken, was to the same effect as the judgment or order affirmed.”

The undertaking, given upon the appeal, must also be held defective-upon this ground, and the relief sought by this motion granted.

The appellant subsequently filed a new undertaking with the requisite number of sureties, but identical in form with the former one. The respondents moved to have such second undertaking also declared defective.

A. Schoonmaker, for motion.

William Lounsbury, opposed.

Westbrook, J. This cause was before the court upon a similar motion in April last. Upon that occasion the undertaking given upon an appeal to the court of appeals from an order and judgment of the general term of this court, affirming a previous judgment for costs against the appellant, in favor of the respondents, entered upon the report of a referee, was held to be defective for two reasons, to wit: First. Because it was executed by only two persons, of whom the appellant was one, and, therefore, it had not “two sureties,” as required by the Code ; and, Second. The form of the undertaking was adjudged not in accordance with section 1332 of the Code, which was held to require it to “be in the same form, as if the judgment appealed from did itself render a judgment similar to the one which it affirmed.” In other words, it was then decided that the undertaking should be in such a form that its express language would, in case of the affirmance by the court of appeals of the order or judgment of the general term, or of the dismissal, of the appeal to the court of appeals, make the sureties thereon liable for the payment of the judgment entered upon the report of a referee, and which judgment the general term had affirmed.

The appellant has, since the previous decision, filed a new undertaking, which complies with such decision and the Code as to the number of the sureties, but its form is identical with that which was then held to be defective. By an analysis of the language of the previous undertaking it was shown that the sureties had simply made themselves liable for the payment of the judgment entered upon the decision of the general term, and not for the original judgment entered upon the report of the referee, which that of the general term had affirmed. It will be unnecessary to refer in detail to the language of the new undertaking, for as it is substantially identical, as has already been stated, with the former, the criticism of such former undertaking is applicable to it.

The respondents now move to have the last undertaking also declared defective for the reason that it does not comply with section 1332 of the Code, by expressly providing for the payment of the original judgment. Upon this motion, the counsel for the appellant was, at his urgent request, again heard at some length, but nothing which he urged has in the least shaken the views expressed in the former opinion.

First. Section 1382 of the Code prescribes the form of the undertaking to be given, when the appeal to the court of appeals is from a judgment or order of the general term affirming a previous judgment or order. By sections 1327, 1328, 1329, 1830 and 1331, the forms of undertakings on appeals to the court of appeals, from judgments or orders of the general term directing the performance of some act, are prescribed, but in neither of those sections is the form of the undertaking given for a case in which the appeal is from a judgment or order of the general term affirming a previous judgment or order. For the latter case section 1332 alone provides. What does it declare % “ 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 so taken was to the same effect as the judgment or order so affirmed.”

It would seem to be difficult to make'a provision more explicit. “ The undertaking must be the same,” declares the statute, “ as if the judgment or order from which the appeal is so taken was to the same effect as the judgment or order so affirmed.” If the judgment or order appealed from had itself rendered or made the original judgment or order, then clearly the undertaking to be given on appeal to the court of appeals must have provided for the payment of such original judgment; but as the judgment or order of the general term did not render the original judgment, but simply affirmed it, with costs, the undertaking to be given on the appeal to the court of appeals must, in order to “be the same as if the judgment or order from which the appeal is so taken was to the same effect as the judgment or order affirmed,” expressly provide for the payment of such original judgment. This seems so clear as to require no extended comment; bub there is one further thought, to which allusion will now be made.

By section 1317 of the Code the judgment or order of affirmance in the general term could not directly award the amount of the original judgment. Its language is, “A judgment, affirming wholly or partly a judgment from which an appeal has been taken, shall not, expressly and in terms, award to the respondent a sum of money, or other relief, which was awarded to Mm by the judgment so affirmed.” Of this provision, Mr. Throop, in Ms note, says: “The second sentence” (the one just quoted) “is new. It was added to prohibit, by an express enactment, the absurd, inconvenient and unnecessary practice of entering up a judgment for the original amount, when a judgment appealed from is affirmed.”

By the light of this section, the language of section 1333 is more easily understood. The judgment or order of the general term, when it affirms one previously rendered or made, must be simply an affirmance, and it cannot, “expressly and in terms,” render or make a new one to the same effect as the old. As, therefore, the judgment or order of affirmance does not, “expressly and in terms,” render or make a new judgment or order to the same effect as the one which it affirmed, it becomes necessary,1 on appeal to the court of appeals, in order to secure the payment of the original judgment, that “ the undertaking must be the same as if the judgment or order from which the appeal is so taken was to the same effect as the judgment or order so affirmed.”

Second. Mr. Throop, in his note to section 1333, has left us in no doubt as to his meaning by the insertion of such new section. He says: “ The rule has been very obscure, upon the point which this section aims to settle; but it is believed that this section is in accordance with the practical construction of the provisions of the original statute. See Hinckley v. Kreitz, 58 N. Y. 583, where it was held the sureties in the undertaking, given upon appeal to the court of appeals, stan'd in the relation of sureties to those in the undertaking, given on appeal to the general term. This obscurity was, doubtless, one reason why double judgments were entered, as stated in the note to section 1317, ante

This is a plain and explicit declaration by the author of the section, that it was inserted to remove all obscurity as to the liability of the sureties upon the appeal to the court of appeals. That court had held, in the case to which he refers, that those sureties occupied to the signers of the undertaking, on the appeal to the general term, the position of sureties. Still, as, without the provisions of the new section, there might be some doubt as to the extent of the liability by them assumed, he has therein and thereby enacted, that the undertaking shall, in express words, provide for the payment of the original judgment, if the judgment of the general term, affirming such judgment, be itself affirmed by the judgment or order of the court of last resort. Section 1333 does not, as the counsel for the appellant argued, declare the effect of the undertaking to be given; but to remove all doubt as to such effect, it prescribes the form of the instrument.

Having reached the conclusion that the undertaking of the appellant is defective, the remaining question is, shall his counsel have the opportunity to review the order, which this opinion indicates must be made ? On the question involved in the motion the judge, who has heard it, entertains no doubt. He knows, however, the fallibility of human judgment, and the importance of having all doubt solved upon a point of practice of continual occurrence. As the judgment entered is doubtless secure by actual levy upon personal property, and is also a lien upon real estate, upon stipulating that such levy shall continue, and that no effort will, during the pending of the appeal from the order now to be made, be used to remove such lien from the real estate, an opportunity to review will be given by staying its operation until the next general term of this court to be held in the third department; and if the appeal to be taken is then heard, then a further stay is granted until the decision of the general term upon such appeal.

As no costs were either asked or given upon the previous motion, the present one, which presents a point then decided, and nothing new, must be granted, with §10 costs. 
      
      Seems to be unreporled.
     
      
      See ante, 406, 407.
     
      
      See ante, p. 403.
     