
    (89 Hun, 368.)
    STERNE v. TALBOTT et al.
    (Supreme Court, General Term, First Department.
    October 18, 1895.)
    1. Counterclaim—Action on Appeal Bond—Sureties.'
    In an action on an appeal bond, a pledge given to secure the debt for which the judgment appealed from was rendered is not available as a counterclaim to the sureties on such bond.
    2. Action on Appeal Bond—When Lies—Notice op Entry op Judgment.
    Code Civ. Proc. § 1309, requiring notice of entry of judgment to be served on appellant’s attorney before an action can be brought on the appeal bond, does not apply to bonds given on appeals to the court of appeals, but relates only to appeals to certain other courts.
    
      8. Same—Proof of Nonpayment of Judgment.
    In an action on an appeal bond, there is sufficient evidence that the judgment appealed from had not been paid, where the answer does not allege payment, but the uncanceled judgment is put in evidence, and a witness for plaintiff, who is not cross-examined, testifies that the amount stated in the judgment is due on them.
    Appeal from circuit court, New York county.
    Action by Bin ion Sterne against Elisha H. Talbott and Maurice Maas on an undertaking given by defendants on appeal to the court of appeals from a judgment of the general term of the supreme court affirming, with $82.45 costs, another judgment in favor of plaintiff against one Charles F. Beach, Jr., for $2,587.96. From the judgment entered on a verdict directed by the court in favor of plaintiff, and from an order denying a motion for a new trial, made on the minutes, defendants appeal. Affirmed.
    Argued before VAN BRUNT, P. J., and FOLLETT and PARKER, JJ.
    A. A. Greenhoot, for appellants.
    E. Ellery Anderson, for respondent.
   FOLLETT, J.

The plaintiff alleged in the complaint: That November 2, 1892, he recovered a judgment against Charles F. Beach, Jr., in the supreme court for $2,587.96, from which the defendant appealed to the general term, where the judgment was affirmed, and, February 27,1893, a judgment of affirmance was duly entered in favor of the plaintiff and against Charles F. Beach, Jr., for $82.45 costs. 22 N. Y. Supp. 330. That in March, 1893, Charles F. Beach, Jr., appealed to the court of appeals from the last-mentioned judgment, and on said appeal the defendants herein duly executed and filed a written undertaking, pursuant to sections 1326 and 1327 of the Code of Civil Procedure, by which they did “jointly and severally, pursuant to the statute in such case made and provided, undertake that the appellant will pay all costs and damages which may be awarded against the appellant on said appeal, not exceeding five hundred dollars, and do also undertake that, if the judgment so appealed from, or any part thereof, is affirmed, or the appeal is dismissed, the appellant will pay the sum directed to be paid by the judgment, or the part thereof as to which judgment shall be affirmed.” It is also alleged that in June, 1894, the judgment appealed from was affirmed by the court of appeals, and, June 28,1894, a judgment of affirmance was entered on the decision in favor of the plaintiff and against Charles F. Beach, Jr., for $129.95 costs (37 N. E. 825), and that more than 10 days prior to the commencement of this action notice of the entry thereof was duly served, and that no part of any of said judgments has been paid. The defendants answered separately, but their answers are identical. They denied knowledge or information sufficient to form a belief as to the truth of the allegation (1) that a judgment entered upon a decision of the court of appeals for $129.95 had been recovered and entered; (2) that due notice of the entry thereof had been served; (3) that no part of said judgment had been paid. None of the other allegations in the complaint were put in issue. As a further defense it was alleged that the judgment for $2,587.96 was recovered on a loan of money made by the plaintiff to Charles F. Beach, Jr., who pledged as security therefor a bond for $1,000 and 15 shares of stock of $100 each, all of the value of $2,500, which the plaintiff retained, and had failed to apply the avails thereof to the payment of the judgments. The defendants also set up the existence of the pledge as a counterclaim, but did not demand an affirmative judgment. A reply was not served. Upon these issues the case was tried. Before any evidence was given, the defendants moved, on a notice given pursuant to section 515 of the Code of Civil Procedure, for a judgment on the alleged counterclaim, which was denied, and an exception taken. The plaintiff then introduced the judgment records and the original undertaking, and called a witness, who testified, among other things:

“I served the judgment entered on the remittitur, and I served the judgment entered on the remittitur on Charles F. Beach, Jr. I served it personally. I know Mr. Beach. It was served on the 28th day of June, 1894, together with a notice of entry indorsed on the paper I served. I have made a computation of the amount due on the various judgments to to-day. * * * The principal and interest amount in the aggregate to 83,160.63.”

The witness was not cross-examined, and the defendants offered no evidence. Thereupon the defendants moved to dismiss the complaint on the ground that the plaintiff had failed to make out a cause of action, and specified (1) that the service of the notice of judgment upon the party, but not upon his attorney, was insufficient; (2) that the plaintiff had not shown that the judgments had not been paid. The motion was denied, and an exception taken. The court thereupon directed a verdict in favor of the plaintiff for $3,160.63.

Upon the entry of the judgment of November 2, 1892, the debt on which it was recovered was merged in the judgment for the payment of which these defendants became liable in case it was affirmed, and the necessary steps taken to charge them. The fact that the plaintiff might have enforced the judgment by the sale of property of the judgment debtor on which the judgment had become a lien would be no defense to an action on the undertaking. Wood v. Derrickson, 1 Hilt. 410; Heebner v. Townsend, 8 Abb. Prac. 234; Johnson v. Ackerson, 40 How. Prac. 222, affirmed 3 Daly, 430; Sperling v. Levy, 1 Daly, 95; Boomer v. Laine, 10 Wend. 525. It is a general rule that a surety who has unconditionally promised to pay the debt of another cannot defend on the ground that the debt can be collected of the principal debtor, or on the ground that the creditor has in his hands property of the principal debtor out of which the debt can be collected. Insurance Co. v. Babcock, 57 Barb. 231; Bank v. Wood, 71 N. Y. 405; Bank v. Shields, 55 Hun, 274, 8 N. Y. Supp. 298. This case is not within any of the exceptions to the rule, no special equities being alleged in the answer, not even that Charles F. Beach, Jr., was insolvent. Securities in the hands of the plaintiff, if there were any,— of which no evidence was given or offered,—were not available to these defendants as a counterclaim (Wright v. Austin, 56 Barb. 13-16), nor even as a set-off (La Farge v. Halsey, 1 Bosw. 171; Insurance Co. v. Homer, 9 Metc. [Mass.] 39; Wat. Set-Off [2d Ed.] 56 et seq). Whether a counterclaim can be pleaded in an action on a statutory undertaking is a question on which the cases are not agreed. At-water v. Spader, 12 N. Y. St. Rep. 506; Cornell v. Donovan, 14 Daly, 295; Furber v. McCarthy, 54 Hun, 435, 7 N. Y. Supp. 613; Wickham v. Weil (Com. Pl.) 17 N. Y. Supp. 518; Delaney v. Miller, 78 Hun, 18, 28 N. Y. Supp. 1059; same case on second appeal, 84 Hun, 244, 32 N. Y. Supp. 505. The court did not err in refusing to order a judgment for the defendants on the alleged counterclaim, which had not been replied to by the plaintiff.

Section 1309 of the Code of Civil Procedure, requiring notice of the entry of judgment to be served on the appellant’s attorney before an action on an undertaking can be maintained, has no application to undertakings given on appeals to the court of appeals. This section relates only to appeals taken as prescribed in the third, fourth, and fifth titles of chapter 12, which do not embrace appeals to the court of appeals, which are provided for in the second title of chapter 12. Weil v. Kempf, 12 Civ. Proc. R. 379; Johnstone v. Conner, 13 Civ. Proc. R. 19. Why a notice is not required before an action can be maintained on such an undertaking is not apparent.

Some evidence was given by the plaintiff of the nonpayment of the judgments. The uncanceled judgments were received in evidence, and a witness testified that $3,160.63 was due on them. The witness was not cross-examined, and we think, in the absence of any allegation of payment in the answers, and in the absence of any evidence of payment given or offered by the defendants, that a prima facie case was made out. It is quite apparent that the defendants have no defense to this action on the merits.

The judgment and order should be affirmed, with costs. All concur.  