
    LAURENCE ENNIS, Plaintiff and Appellant, v. JOHN F. BRODERICK and THOMAS NOLAN, Defendants and Respondents.
    Before Curtis, Ch. J.; and Freedman, J.
    
      Decided March 3, 1879.
    Undertaking under sections 354, 356, of the Code.—Liability of sureties thereon.—Execution, informality in return of.
    When, on an appeal from a judgment of the district court, the appellant gives the undertakings required by sections 354 and 856 of the Code, in one instrument, which is duly approved by a justice of said court, and flies it with the clerk of the court of common pleas, it is a sufficient compliance with the statute to operate as a stay upon the judgment appealed from (Jackson v. Smith, 16 Abb. Pr. 201).
    By the undertaking upon which this action is brought (which was the same as the one above described) the defendants undertook that if the judgment should be affirmed on appeal, and execution issued thereon be returned unsatisfied, they would pay the amount unsatisfied. Held, that to make a prima facie case under the pleading, plaintiff was only bound to show that the judgment had been affirmed, and that execution issued thereon had been returned unsatisfied (Sperling v. Levy, 1 Daly, 95).
    By the filing of a transcript of the judgment referred to -in said undertaking in the office of the clerk of the city and county of New York, it thereupon became a judgment of the court of common pleas, for all purposes of enforcing satisfaction.
    If the formal requirement in the execution issued thereafter upon the same, directing the sheriff to return said execution to the clerk of the city and county of New York, was erroneous, which, however, is not clear under the new Code, it was a mere informality which may be disregarded, and which cannot be taken advantage of by defendants herein.
    Chapter 484 of the Laics of 1862 does not apply to the case at bar. It provides a cumulative remedy against marshals and their sureties, by suit on their official bonds.
    
    The plaintiff recovered judgment on July 13, 1877, against Lawrence A. Curry, one of the marshals of the city of New York, in the district court of the city of New York, for the First Judicial District.
    Curry appealed from that judgment to the general term of the court of common pleas, and gave the usual undertaking required by section 356 of the Code, to stay proceedings, in which the defendants herein were the sureties.
    It was duly approved by the justice of the district court, and filed in the office of the clerk of the court of common pleas on the day of its approval.
    A transcript of that judgment was filed in the office of the clerk of the city and county of New York, on the day of its recovery.
    The judgment appealed from was affirmed by the court of common pleas on November 23, 1877, and, upon entry of judgment of affirmance and filing of transcript thereof in the county clerk’s office, execution was issued on both out of the court of common pleas to the sheriff of the city and county of New York, and, by said sheriff, returned on December 14, 1877, wholly unsatisfied, and the one issued upon the district court judgment was returned to the clerk of the city and county of New York, pursuant to section 1,367 of the Code of Civil Procedure.
    This action is brought to recover of the defendants the amount of said judgment upon the undertaking given on appeal.
    At the trial, upon the close of plaintiff’s evidence, the defendants moved for a dismissal of the complaint upon the following grounds.
    I. That no notice of entry of judgment of affirmance had been given, either to the attorney for Curry in the suit of Ennis v. Curry, or to the sureties (who are defendants here), previous to the commencement of this action.
    II. That an undertaking to stay proceedings must be delivered to and filed with the justice in the district court. That the undertaking in this action was never delivered to him, but simply approved by him, then ■ immediately taken from him by the person offering it for approval, and filed with the clerk of the court of common pleas, for the mere purpose of perfecting an appeal; and therefore the sureties, at most, are obligated only to the extent of the costs, and the costs having been paid under the order of the court, the plaintiff could recover nothing more in this action.
    III. That no transcript of the judgment against the marshal having been filed in the office of the clerk o"f the court of common pleas, pursuant to section 8 of chapter 484 of the Laws of 1862, the plaintiff could not maintain this action against the defendants.
    , IV. That no execution having, been issued and returned to the court of common pleas upon such judgment, the plaintiff could not recover.
    The court dismissed the complaint, to which order dismissing.the complaint the plaintiff excepted.
    The court thereupon adjourned for the term. After-wards, plaintiff’s attorney obtained from another judge sitting at Chambers, an order to show cause why a new trial should not be granted upon the minutes of the judge who had presided at the trial. The motion was heard by the judge last referred to, and denied.
    Plaintiff appealed from the judgment and the order denying motion for new trial.
    
      L. B. Bunnell, for appellant.
    
      Thomas & Wilder, for respondents.
   By the Court.—Freedman, J.

The evidence shows that on July 19, 1877, the undertaking- sued upon was duly approved by the justice of the district court, and that thereupon it was filed in the' office of the clerk of the court of common pleas. This was a sufficient compliance with the statute to operate as a stay upon the judgment appealed from (Jackson v. Smith, 16 Abb. Pr. 201).

By that undertaking the defendants undertook that if the judgment should be affirmed on appeal, and execution issued thereon be returned unsatisfied, they would pay the amount unsatisfied. The judgment was affirmed and the execution issued thereon returned unsatisfied, and that was all the plaintiff was under the pleadings bound to show, in order to make out a prima facie case (Sperling v. Levy, 1 Daly, 95).

By the filing of the transcript in the office of the clerk of the city and county of New York, the judgment against Curry became a judgment of the court of common pleas for all purposes of enforcing satisfaction (Code, § 68). The filing of the transcript in the office of the clerk of the city and county of New York was necessary, in order to make the judgment against Curry a lien upon his real estate, if he had any, and to enable the plaintiff to issue an execution against both the personal and real property of the judgment debtor.

If the formal requirement, directing the sheriff to return the execution to the office of the clerk of the city and county of New York, was erroneous, which, however, is not clear since the new Code, it was, as held by Robinson, J., in Ennis v. Curry, a mere informality, which may be disregarded.

Chapter 484 of the Laws of 1862 does not include the case at bar. It provides a cumulative remedy against marshals and their sureties, by suit on their official bonds. Upon proof that a judgment has been recovered against a marshal for official misconduct, that a transcript of such judgment has been filed in the office of the clerk of the city and county of New York, and that an execution issued thereon has been unsatisfied, &c., &c., a judge of the court of common pleas may grant leave to sue upon the official bond. Such suit is to be brought in the marine court, or any of the district courts, and if judgment be recovered, a transcript of such judgment must be filed with the clerk of the court of common pleas, to the end that it may be enforced in that court, as provided for by the said act, and that the clerk of said court, who by law is the custodian of the bond, may cancel the bond to the extent of the judgment. When the bond of any marshal gets entirely canceled by the entry of such judgments against it, the clerk must notify the mayor to that effect, and then the mayor must suspend the marshal. These provisions, it will be seen, do not at all apply to an action against a marshal’s sureties upon an appeal bond.

The objection that no notice was shown to have been given to the attorney of Curry, or the sureties, the defendants herein, of the entry of the judgment of affirmance, was abandoned bn the argument, and consequently does not require to be considered.

The judgment should be reversed, with costs to appellant, to abide the event. But the order denying plaintiff’s motion upon the judge’s minutes for a new trial must be affirmed, with costs, because the motion was not made during the term at which the trial took place.

Curtis, Ch. J., concurred.  