
    Charles N. Johnstone, Resp’t, v. Martin V. B. Conner et al., App’lts.
    
      (City Court of New York, General Term,
    
    
      Filed September 15, 1887.)
    
    Appeal—Undertaking—Oosts—Effect of part reversal of judgment ON SURETIES ON APPEAL.
    The complaint in a supreme court action was dismissed as to two defendants who appeared by the same attorney, with costs. The judgment-was affirmed by the general term, with costs, and on further appeal to the court of appeals, the judgment was affirmed as to one of said defendants, and a new trial ordered as to the other. Held, that the defendant ultimately successful became entitled to all of said costs from the judgment debtors or their sureties on the appeal.
    • It appears from the complaint, that Johnstone, Keese and others were sued in the supreme court, upon a joint and several indemnity bond, in which Keese was principal and the others sureties. Johnstone and Keese defended by the same attorneys. The complaint was dismissed at circuit, and the joint costs of Keese and Johnstone were adjusted at $372.55. On appeal to the general term, the judgment was affirmed, and the joint costs of Keese and Johnstone were taxed at $86.70. Upon a further appeal taken to the court of appeals, the defendants here executed the undertaking now sued on by Johnstone. It is in the usual form of such an instrument, and was intended to operate as a stay by securing the payment of these costs. The court of appeals affirmed the judgment appealed from as to Johnstone, with costs, but reversed it as to Keese and the others by granting a new trial, with costs to abide the event. Johnstone’s costs on the appeal to the court of appeals were taxed at $96.25, and have been paid.
    Johnstone then began this action, claiming the whole of the costs which had been awarded to himself and Keese at the circuit and general term. Defendants demurred to the complaint on the grounds:
    
      First. That it did not state a cause of action.
    
      Second. That Keese should have been made a party plaintiff or defendant
    The demurrer was overruled and judgment was directed for the full amount claimed and defendants appealed from the interlocutory judgment and order.
    
      Henry Thompson, for app’lt; Foster & Stephens, for resp’t.
   Per Curiam.

The points urged by the appellants against the decision appealed from are fully answered by the opinion of the court below. The decision by the court of appeals in the action pending there, deprived Keese of any proprietory interest in the judgments recovered in the joint names of Keese and Johnstone, and as the judgments were in all things affirmed as to Johnstone it left him the sole owner thereof. The judgments are unpaid and the sureties upon the appeal to the court of appeals, by the fair interpretation of their undertaking must be held to have agreed to pay them in case of their affirmance by the appellate court. The form of the affirmance is of no consequence so long as the adjudication was absolute and final in favor of Johnstone, and conclusive against their principal. The contingency that has happened is one which the nature of the appeal made possible, and is, therefore, within the contemplation of the sureties when they voluntarily executed their undertaking.

The judgment and order must be affirmed, with costs.  