
    Pasquale Caponigri, Respondent, v. Henry G. Cooper, Appellant.
    
      Undertaking on opening a default in the City Court of New York—the liability thereunder extends to a judgment entered, on a 'remittitur from the Court o Appeals—variance between the undertaking and the provisions of the order.
    
    Judgments having been taken by default against the defendants in two actions brought in the City Court of New York, the court opened the default upon condition that' the defendants should give an undertaking in each of said . actions, “ to secure any judgment that may be recovered in .said two actions, ■ which undertakings are to be approved upon notice to plaintiff’s■ attorney and justification Of the sureties by one of the justices of this court, and eacn to be given in the penalty of twice the amount of the claims of the plaintiff in each of the above-entitled actions.” Pursuant to this order the defendants gave an undertaking conditioned to pay “the just and full amount of any judgment which may be finally recovered against them * * '* in a certain action now pending in the City Court of New York.” . One of the actions was then brought to trial in the City Court and the defendants recovered á verdict upon which judgment was entered. This judgment was affirmed by the General Term of the City Court of New York and also by the Appellate Term of the Supreme Court, but was reversed by the Appellate Division which ordered a new trial. The plaintiff then appealed to the Court of Appeals, stipulating for judgment absolute. The Court Of Appeals affirmed the Appellate Division" and directed judgment absolute against the defendants pursuant to the stipm lation. Thereafter, on the remittitur from the Court of Appeals, the judgment of the Court of Appeals was made the order and judgment of the City Court.
    In an action brought upon the undertaking, after an execution issued upon the judgment entered upon the remittitur had been returned unsatisfied, it was
    
      Held, that the order opening the default and the undertaking contemplated that; the liability on the undertaking should not be limited to a judgment recovered in the first instance in the City Court, but should be construed to embrace a judgment entered as the result of a stipulation for judgment absolute in the Court of "Appeals;
    
      That, as the undertaking was not a statutory one, the variance between the language thereof and of the order opening the default did not affect the validity of the undertaking;
    That, whether the liability on the undertaking was to be determined by the phraseology of the order opening the default or by that of the undertaking, the plaintiff was entitled to recover.
    Appeal by the defendant, Henry G. Cooper, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Hew York on the 24th day of June, 1901, upon the decision of the court rendered after a trial before the court without a jury at the Hew York Trial Term, a jury having been waived.
    
      James C. De La, Mare, for the appellant.
    
      Charles W. Dayton,, for the respondent.
   Laughlin, J.:

This is an action on a common-law undertaking given by Pasquale Altieri and Pietro Altieri, on opening a judgment which had been taken against them by defa~ilt in the City Court of the city of New Xork, in an action whereiii the respondent was plaintiff and they were defendants. There were two actions pending and two judgments by default, both of which were vacated on the same conditions, but only one of the undertakings is involved here. The order opening the default granted the motion upon condition, among oth~rs, that the defendants "give to the plaintiff an undertaking in each of the above-entitled actions executed by two sureties to secure any judgment that may be recovered in said two actions, which undertakings are to be approved upon notice to plaintiff's attorney and justification of the sureties by one of the justices of this court, and each to be given in the penalty Of twice the amount of the claims of the plaintiff in each Of the above-entitled actions." The appellant joined in the undertaking as a surety and it was duly approved and bound the parties executing it jo4ntly and severally, in the sum of $2,100. It was conditioned that if the defendants in the action pending in the City Court should pay to the plaintiff therein, the respondent herein, "the just and fulf amount of any judgment which may be finally recovered against them * * * in a certain action now pending in the City Court of New York * '* * then this obligation shall be void, otherwise to remain in full force, effect and virtue.”

The action was subsequently brought to trial in the City Court, and the defendants recovered a verdict upon which judgment was entered. On appeal to the General Term of the City Court, taken by the plaintiff,, that judgment was affirmed. The plaintiff further appealed to the Appellate Term of the first department where the judgment was again affirmed. An appeal was then taken to the Appellate Division by leave of the Appellate Term, and on such appeal the judgment was reversed and a new trial ordered, with costs of the appeal in the several courts to plaintiff to abide the event. The Appellate Division then granted leave to the defendants to appeal to the Court of Appeals, which they did, stipulating judgment absolute as required by law. The Court of Appeals, affirmed the judgment of the Appellate Division and directed judgment absolute against the defendants for the relief demanded in the complaint, with costs. On the 16th day of January, 1901, on the remittitur from the Court of Appeals, an order was duly made and entered in the City Court making the order and judgment of the Court of Appeals its order and judgment, and judgment for the plaintiff and against the defendants in that action for $2,282.75 was thereafter duly entered in the clerk’s office of the City Court on the 18th day of January, 1901. The transcript of the judgment was filed and the judgment was duly docketed in the clerk’s office of the county of New York, where the defendants resided, and an execution was duly issued on the judgment and returned wholly unsatisfied. It appears that there has been no attempt to take an appeal from the. last-mentioned judgment, and that the time for appealing, if an appeal could be taken therefrom, has expired.

The appellant contends that the order of the court and the undertaking contemplated that the liability on the undertaking should be limited to liability for a judgment recovered in the first instance in the City Court, and that it should not be construed to embrace a judgment entered as the result of a stipulation for judgment-absorlute in the Court of Appeals. We think that both the order and undertaking should be construed in the light of the statutory provisions relating to appeals in such cases. The plaintiff at that time had a judgment. Presumably there was a question with reference to the solvency of the defendants. The court, in requiring the undertaking, doubtless intended to secure the plaintiff on any judgment that he might recover in the action when the same should become final. Stress is laid upon the fact that the language of the order and of the undertaking with reference' to the liability differ. This is not a statutory undertaking and the variance is not sufficient to affect its validity. Whether the liability on the undertaking is to be determined by the phraseology of the order or by that of the undertaking is immaterial. In either event the plaintiff would be entitled to recover. The judgment was final, and it was not only recovered in the action, but it was recovered in the court in which the action was commenced, was then pending and in which judgment had been taken by default.

The judgment appealed from should be affirmed, with costs.

Van Brunt, P. J., O’Brien, Ingraham and Hatch, JJ., concurred.

Judgment affirmed, with costs.  