
    Blackwell v. Bainbridge.
    (New York Common Pleas — General Term,
    December, 1892.)
    If it is not certain that plaintiff may not recover on a new trial, it is error for the court, on appeal, to dismiss the complaint and render judgment absolute for defendant.
    In an action against the sureties on an undertaking for costs in a proceeding in a United States Circuit Court, given to stay judgment pending a motion to set aside the report of the referee and for a new trial, it appeared that the motion was not made, that the judgment was duly entered and that a motion to stay its enforcement had been denied on the ground that being regularly entered, it could not be set aside. Held, that the action was well brought, for the reason that the avoidance of the undertaking by performance of the condition that it should be void and of no effect if the report was vacated, set aside or a new trial granted, was a legal impossibility.
    
      Held, further, that an agreement by the parties to the judgment that it should be satisfied by the payment of a certain amount and a release placed in escrow, to take effect only on such payment, did not operate to prevent the execution of the judgment and collection of the debt for which defendants were sureties
    Appeal from order and judgment of the General Term of the City Court, reversing a judgment for plaintiff at the trial term, and directing a dismissal of the complaint and judgment for the defendants.
    Action on an undertaking for costs upon a stay pending a motion for a new trial.
    The opinion states the case.
    
      Frank E. Blackwell, for plaintiff (appellant).
    
      David Leventritt and James W. Monk, for defendants (respondents).
   Pryor, J.

In dismissing the complaint, and rendering absolute judgment for the defendants, the General Term of the court below, committed undeniable error, for it is not certain that the plaintiff might not recover on another trial, and in such case, another trial is his legal right. Guernsey v. Miller, 80 N. Y. 181; King v. Barnes, 10 id. 267, 283; Foot v. Ins. Co., 61 id. 571; Capron v. Thompson, 86 id. 418, 421; Cawthrop v. Leary, 89 id. 622; Goodwin v. Conklin, 85 id. 21, 26; Whitehead v. Kennedy, 69 id. 462.

It follows, therefore, that the judgment of the General Term must be reversed; but whether the judgment on the verdict should be affirmed, depends upon the absence of error against the defendants on the trial of the cause.

The action is against sureties on an undertaking for costs in a proceeding in the United States Circuit Court for the southern district of New York ; and the defense apparent on the trial is, substantially, a denial of nonperformance of the undertaking, an accord and satisfaction between the creditors and principal debtors, and a release of the sureties by a suspension of the right of the creditor to enforce his claim against the principal debtor.

The undertaking is coupled with a condition of defeasance, namely, “ if said report is vacated, set aside, or a new trial granted, this undertaking to be void and of no effect.” The order requiring the undertaking and the recitals of the undertaking, exhibit that it was given to stay judgment pending a motion to set aside the report of the referee and for a new trial in the federal court action. The concession is, that the motion has not been made, and consequently, that the report has not been set aside, nor a new trial granted; but, the defendants maintain that the motion is still available; that the order upon the motion, if made, may set aside the report and award a new trial, and that, so the undertaking may yet be avoided. We are of the opinion that the proposition is untenable.

The contention of the plaintiff, is that since the undertaking was ordered for no other purpose than to effect a.stay of judgment pending a motion for a new trial, and judgment for costs as well as the principal debt has been duly entered, and a motion to stay its enforcement has been denied upon the express ground that being regularly entered it cannot be set aside, avoidance of the undertaking by performance of the condition of defeasance is now a legal impossibility, and that being so, the action is well brought.

And such, is our conclusion; but, as the point was ruled in favor of the plaintiff on the trial, and is not challenged in the able opinion of the General Term below, we are dispensed from argument in its support.

There has been no satisfaction of the judgment in the federal court; an accord, but not a satisfaction; for the agreement between the parties to the judgment was, that it should be satisfied only by payment of the $5,000—a condition not yet performed—and the release was placed in escrow, to take effect only on the fulfillment of that condition.

Appellants contend further, that, in any event, the agreement operates, during its pendency, to prevent execution of the judgment and collection of the debt for which they are sureties; and that so they are discharged from liability to the plaintiff. Assuming the agreement to be upon a sufficient consideration, still its effect is not to suspend execution of the judgment; so far the contrary, that it makes express provision for proceedings in its enforcement pending the agreement.

Partial payment upon the judgment does not entitle these defendants’ sureties on an undertaking for costs to a pro rata abatement of their liability. Ives v. Merchantsʼ Bank, 12 How. [U. S.] 159; Babitt v. Finn, 101 U. S. 7; Wood v. Fiske, 63 N. Y. 250.

Ho error having occurred on the trial of predjuce to the defendants, it results that the judgment on the verdict must be affirmed.

Judgment of the General Term reversed, and judgment of the trial term affirmed, with costs.

Daly, Ch. J., and Bischoff, J., concur.  