
    Watson & Others v. Husson & Another.
    Mere irrelevancy in an answer is not a ground of demurrer.
    When an answer containing irrelevant matter is demurred to, if it contain a valid defence which may be separated from the irrelevant matter, the demurrer must be overruled.
    The dismission by the Court of Appeals of an appeal for want of prosecution, is not, in judgment of law, an affirmance of the judgment appealed from.
    Hence, in an action for a breach of the undertaking given on the appeal, an averment in the complaint that the judgment was affirmed is not sustained by the admission or proof that the appeal wad dismissed.
    The uudertaking which the Code requires upon an appeal from the terms in which it is expressed, cannot be construed as broadly as the bond which the E. S. required to be given on bringing a writ of error.
    (Before Duer, Campbell, and Bosworth, J.J.)
    October 15;
    October 30.
    It is limited to the affirmance of the judgment, and a judgment is not affirmed until the appellate court, upon an examination of its merits, has by a proper sentence declared its validity.
    
      Held, that as the answer in this case denied the affirmance of the judgment, and averred the dismission of the appeal, it contained a full defence.
    Judgment at special term overruling plaintiff’s demurrer affirmed with costs.
    This was an action against the defendants for the breach of an undertaking, executed by them as sureties of one Robert Anderson, upon an app'eal made by him to the court of appeals, from a judgment of this court. The pleadings are as follows :—
    The plaintiffs complaining, respectfully show to this court, that on the fifteenth day of May, 1849, judgment was rendered at a general term of this court, in favor of the above named plaintiffs, against one Robert Anderson, for the sum of one hundred and forty-nine dollars and ninety-eight cents, and that on the first day of February, 1850, the said Robert Anderson appealed to the court of appeals from the said judgment, and that upon said appeal, the said Joseph Husson and Daniel M. Dugan, made and executed an undertaking in the words following, that is to say:—
    Robert Anderson, against William Watson, James P. Drummond, William T. Johnson. The plaintiff appeals to the court of appeals frorq. the final judgment of nonsuit, made by the Superior Court of the city of Mew York, at a general term thereof, which judgment was for costs only to one hundred and forty-nine dollars and ninety-eight cents, and entered and docketed the fifteenth day of May, 1849, in the city and county of Mew York; now we, the subscribers, hereby undertake, that if the judgment appealed from, or any part thereof, be affirmed, the appellaqt will pay the amount directed to be paid by the judgment, or the part of such amount as to which the judgment shall be affirmed, if it be affirmed only in part, and all damages which shall be awarded against the appellant upoq the appeal, and that the appellant will pay all costs and damages which may be awarded against him on the appeal, not exceeding two hundred and fifty dollars.
    
      New York, Feb. 1st, 1850.
    (Signed,) Joseph Husson. '
    (Signed,) _ Danl. N. Dugan.
    And that the said undertaking was duly acknowledged before a commissioner of deeds, in due form of law, by each of the said appellants, and was accompanied by the affidavits of the -sureties that they were each of them worth double the amount specified therein.
    And. the said plaintiffs further show, that by an order of the said court of appeals, made on the 25th day of February, 1850, the said appeal .was dismissed, and the judgment appealed from was in all respects affirmed, and that the appellant has not paid the amount directed to be paid by the said judgment. Wherefore the said plaintiffs pray judgment for one hundred and .forty-nine dollars and ninety-eight cents, with interest, from the 15th day of May, 1849, and costs.
    The defendant Husson put in the following separate answer:
    And this defendant, for his own separate answer to the said complaint, states upon his information and belief, that before the. commencement of this suit, in the said complaint mentioned, .and on or about the third Monday of June, 1840, William T., Johnson, one of the plaintiffs in this action, commenced a suit against the said Robert Anderson, in the court of Common Pleas, in and for the city and county of New York, in which suit the said Robert Anderson appeared by S. F. Clarkson, his attorney, and defended the same, and such proceedings were thereupon had in the said court, that the said Robert Anderson, by the consideration and judgment thereof, recovered the sum of $105. TUo, for the costs and charges of his defence in said suit. That thereupon, and on or about the first Monday of January term, 1842, the said William T. Johnson had, and prosecuted out of the Supreme Court of judicature of the people of the state of New York, a writ of error, to remove into the said Supreme Court, the record of the judgment recovered by said Anderson, in said court of Common Pleas; and upon said suing, and said writ of error, the said William T. Johnson, James P. Drummond, and William Watson, gave their bond to the said Robert Anderson, pursuant to the statute in such case made and provided. ,
    That the said Robert Anderson appeared upon said writ of error, by S. F. Clarkson, his attorney, and defended the same, and such proceedings were thereupon had that the said Supreme Court affirmed the judgment of the said courts of Common Pleas with costs, and the judgment on that affirmance was docketed on or about the 28th day of January, 1843, for $lY4Tff„, that both judgments were for costs only, and that the said Samuel F. Clarkson, as the attorney for said Anderson, in said suit, in said court of Common Pleas, and also in the writ of error so issued out of the said Supreme Court, had a lien and claim upon said two judgments,- for the full amount thereof, of which facts the said defendants had due notice, long prior to the date of the release hereinafter mentioned.
    That a suit was commenced on or about the thirtieth day of January, 1843, in this court, by the said Anderson, against Johnson, Drummond, and Watson, by the said .Samuel F. Clarkson, his attorney, on the said bond so given on the aforesaid writ of error, sued out of the said Supreme Court, at which time said Anderson was a resident in the city of New York; and pending the said suit, said Watson made a motion in the said Supreme Court to off-set the judgments mentioned in the following order, and thereupon the said court made an order, as follows:—
    “ After hearing counsel for both parties, on plaintiff’s motion, that he have leave to set-off so much of the judgments entered in the Supreme Court of the city of New York, recovered by James P. Drummond and William Watson, against Robert Anderson, for $295 29, as may be necessary against the judgments in this court in favor of said Robert Anderson, against said. William T. Johnson, for $174 05, and the costs of affirmance; ordered that said motion be granted, so far as' respects the costs adjudged to the defendant in this case, on the affirmance of the judgment in this case, in December, 1845, by the Court of Errors, leaving the attorney for the defendant in this cause, to take his remedy against the plaintiff therein, for the costs adjudged against said plaintiff in 1843, the amount of which is $174 05, without costs of this motion to either party; that on or about the 29th day of January, 1849, the said plaintiff in this action, or some, or one of them, acting on behalf of the others, or other of them, after due notice, that said judgments were subject to the lien of said S. F. Clarkson, the attorney of said Anderson, on the aforesaid suits, by fraud and collusion with said Anderson, obtained from Mm, without any valuable or valid consideration, a release of that date, by means of which release the said plaintiffs in this smt were enabled to, and did defeat the said suit in said Superior Court, upon said bond, and procured a judgment of nonsuit against said Anderson, which is the judgment mentioned in said complaint.
    “ And this defendant further answering, says, that he admits on the 15th day of May, 1849, a judgment, which has been twice adjudged to have been obtained wrongfully and collusively by the above plaintiffs, and was and is void as to the real party in interest, was obtained against Robert Anderson, the then nominal party, for the sum of $149 98, in this court, of which two decisions the said Watson had notice, that the real party in interest gave notice in the name of said nominal party Robert Anderson, of an appeal from the aforesaid judgment to the Court of Appeals.
    “And from information, this defendant believing said Watson well knew said suit was not prosecuted by said Anderson, but by the real party in interest; that the said suit was commenced in this court in January, 1843, before the Code came into operation, and was brought to recover costs alone which had been adjudged by the Supreme Court of this State, to belong to Samuel F. Clarkson, the attorney at law, ,in said suit of Robert Anderson, the nominal party, of which adjudging and decisions the said Watson also had notice as this defendant is informed and believes. That after said notice of appeal to the Court of Appeals, the transcript from this court could not be and was ndt procured in season to comply with the second rule of the Court of Appeals, so as to invest and give the said Court of Appeals the possession of and jurisdiction over said judgment appealed from, and thereupon, on the 25th day of February, 1850, the said William Watson (one of the above plaintiffs, and acting as attorney and counsel for those defendants), caused to be entered in the clerk’s office of the said Court of Appeals, an order, entitled,.and as following, to wit:—
    “ On filing an affidavit of William Watson, proving that the appeal in this cause was perfected on the second day of February, and a certificate of the clerk that no return has been filed in the Court of Appeals: it is ordered that the appeal from the judgment in this cause be. dismissed for want of prosecution, with costs to be taxed. That this defendant denies the statement in the complaint in this" action, made as follows: ‘ And the judgment appealed from was in all respects affirmed.’
    “ And this defendant further answering, says, that said Watson had, on or about the 13th March, 1850, all the costs for said dismissal, by said Court of Appeals he was entitled unto, under and by virtue of the said order dated February 25th, 1850, taxed at the sum of $27 30, which amount was paid to said Watson on the said 13th March, 1850, he giving his receipt therefor, without, then or since claiming any further amount of money, for or by reason of said notice of appeal, until the commencement of this action.
    “ And this defendant further asnwering the said complaint, says, that he has not -sufficient knowledge to form a belief whether he signed the undertaking as set out in said complaint, but this defendant did not sign any undertaking at the request, directly or indirectly, of the said Robert Anderson, but for Samuel F. Clarkson, the person known by said Watson to be the real party in that suit. To this answer the plaintiffs interposed the following demurrer:—
    “And as to the defence of the said Husson, by him first above pleaded and contained on the first and second pages of his answer, to the words ‘ And this defendant,’ on the fifth line, from the bottom of said page, the said plaintiffs demur to the same for insufficiency. And they assign the following causes of demurrer:—
    “ That the said part of the defendant’s answer is not a statement of any new matter constituting a defence, or set-off, to the matters alleged in the complaint. That it contains nothing whereby the plaintiffs should' be barred from having or maintaining their aforesaid action.
    “ And as to that part of the said answer that immediately follows the portion above demurred to, to the words, ‘ And this defendant further, on information,’ on the 25th line of the fourth, page of the said answer, secondly above pleaded, the said plaintiffs demur to the same, and they assign the following causes of demurrer:—
    “That it professes to admit facts stated in the complaint which are not therein stated, there being no statement in the complaint that a judgment of the 15th day of May, 1844, had been twice, or at any time adjudged to have been obtained wrongfully or collusively by the plaintiffs. .
    “ That the said defence secondly demurred to, is not a plain and concise statement of any new matter constituting a defence, or set-off, without unnecessary repetition, but is an obscure and prolix statement, with unnecessary repetition of facts and occurrences, which, if properly pleaded, would constitute no defence or set-off to the averments in the complaint.
    “ That it sets forth the payment of $27 50, costs on the dis, missal of an appeal, when no demand is made in the complaint of such costs, nor is the suit brought to recover said costs.
    “ That it denies the execution of the undertaking mentioned in the complaint, and alleges new matter as a defence to the said undertaking.
    “ That it is informal, and insufficient in every respect.”
    At a special term of the Superior Court of the City of Hew York, held at the City Hall, in the city of Hew York, on the 24th day of April, 1852.
    Present, W. W. Campbell, Justice.
    
    The demurrers to the first and second defences set up in the separate answer of the defendant, Joseph Husson, having heretofore been brought on for argument pursuant to notice, and after hearing ¥m. Watson, of counsel for the plaintiffs, and S. E. Clarkson for the defendant, Joseph Husson, and upon due deliberation had, and upon the affidavit and order to show cause as to the settlement of the order and judgment in this action, it is ordered that the demurrer of the plaintiffs, as to, the first defence, is allowed; and that the plaintiffs’ demurrer as to the second defence, in said Husson’s answer, is hereby overruled—the costs to abide the event of this action—and the order to show cause and to stay proceedings, is hereby vacated and discharged without costs on said order, to show cause to either party. Either party may be at liberty to amend in ten days.
    (A Copy.) E. G. Campbell, Glerh.
    
    The plaintiffs appealed to the general term from part of the above order, which overruled the demurrer to the second defence, and this appeal was now heard.
    
      W. Watson, for plaintiffs,
    made and argued the following points—
    I. The matters set forth between folios 15 and 22 of the answer, are insufficient and improperly pleaded.
    1. They are a reiteration of the matters contained in the first defence, which has been overruled.
    2. The said answer alleges the payment of $27 30 costs, which are no part of the plaintiffs’ cause of action, and are not demanded by the complaint.
    3. It denies the execution of the undertaking, and alleges new matter in avoidance of the same.. (McMurray v. Gifford, 5 How. Pr. R. 15. Benedict v. Seymour, 6 Pr. R. 303.)
    4. The denial that the judgment was affirmed is insufficient. The answer should deny that it was affirmed in part, as well as that it was in all respects affirmed. (Hopkins v. Everett, 6 P. R. 159.)
    H. These are defects of which advantage maybe taken-in an answer by demurrer. (Code, sec. 153.)
    IH. The said answer contains nothing in bar of this suit, because,
    I. By a" dismissal of the appeal, the judgment below is affirmed. Rules of the Court of Appeals, 2, 7, which provide, that in cases of dismissal, the court below may proceed as though there had been no appeal.
    
      2. More than two years since the judgment have elapsed, and no appeal will now lie. (Code, sec. 331.)
    IY. The Code, which includes the law in regard to appeals, is a remedial statute, and will receive a liberal or equitable construction. The whole statute will be taken together. The reason and spirit will be considered. The letter may be enlarged or restricted to effectuate the intent. Ex. “ Executors” held to include “ Administrators.” All persons may devise— Held not to include infants and femes coverts. (Dyer, 54. Pow. Dev. 142. Leases by Bishops, &c., 1 Bl. 87—1 Kent Com. 17h ed. 462-5. Bac. Ab. St. 1, 6, 7. Plow. 365, 465. 3 Coke, 7.)
    
      S. F. Clarkson, contra, for defendant.
    I. That part of the answer of defendant Husson which is included in the second demurrer, embraces different and distinct defences; therefore, if any matter of defence embraced in this second demurrer is good, the demurrer must be overruled, for it cannot be good in part and bad in part. (12 Wend. 169. 1 Denio, 428, Freeland v. McCullough.)
    
    II. The answer sets forth the order of the plaintiffs, obtained in the Court of Appeals, the 25th day of February, 1850, and it shows that the appeal was dismissed, for no return was filed, and that the judgment was not affirmed. The undertaking set out in the complaint is, to pay only on affirmance. (4 Cowen, 711. 19 John. R. 455.)
    III. The denial by this defendant of the allegation in the complaint, “ and- the judgment appealed from, was in all respects affirmed,” formed a good issue, and therefore the demurrer should be overruled, if other reasons did not exist against the demurrer. (12 Wend. 169. 1 Denio, 428.)
    IY. The complaint sets out that part of the undertaking “ that the appellant will pay costs and damages which may be awarded on appeal;” therefore, this defendant had a right to set forth in his answer, that on the 13th March, 1850, he paid all the plaintiffs demanded, under that order of 25th February, 1850—that is $27 run—and this demurrer is not good to this part of the answer.
    
      V. Judgment must be given, on demurrer, against the party who commits the first fault in pleading. (Wyman v. Mitchell, 1 Cowen, 316. Griswold, Ins. Co., 3 Cowen, 96.)
    1. Here no demand is stated in the complaint to have been made before this action, though the defendant is surety. (Douglass v. Rathbone, 5 Hill, 143-4.) A demand is parcel of the contract.
    2. Ho breaches are alleged and set forth in the complaint, as the statute requires. (2 R. S., p. 378, sec. 5. Reed v. Drake, 7 Wend. 345. Nelson v. Bostwick, 5 Hill, 39, 40. Barnard v. Darling, 11 Wend. 27.)
    VI. The judgment below should be affirmed, with costs.
   By the Court. Duer, J.

The portion of the answer to which the demurrer is taken doubtless contains much irrelevant matter, which, as such, had the proper motion been made, must have been stricken out. But the issue of law which the demurrer raises is, that admitting all the facts set forth in this portion of the answer to be true, they constitute no defence, and, consequently, if a valid defence may be extricated from the irrelevant matter, this issue must be determined against the plaintiffs. In other words, the judgment at special term overruling their demurrer must be affirmed. (Smith v. Grenien, 2 Sand. S. C. R. p. 700; Fry v. Bennett, 5 id. 62.) The undertaking of the defendants is in the words of the Code, and bound them to satisfy the judgment to which it refers, in case it should be affirmed in the Court of Appeals, and the complaint avers that the judgment is so affirmed ; and that the defendants have not paid its amount, and therefore prays for judgment against" them. The answer, inter aUa, denies the affirmance of the judgment, and avers in effect that the only order made in the Court of Appeals was an order dismissing the appeal for want of prosecution, and the plaintiffs, by demurring, admit that such was the fact..

It follows from this statement, that unless we are bound' to'say that the order dismissing the appeal is equivalent in law to an affirmance of the judgment, there has been no breach of the defendants’ undertaking, and the plaintiffs are not entitled to maintain this action. A judgment affirmed in the court of ultimate jurisdiction can never again be questioned; and if the effect of the dismission of the appeal was to preclude any further examination or impeachment of the judgment, it might reasonably be contended that the averment in the complaint that the judgment was affirmed, is sustained by the admitted fact, that the appeal was dismissed. It is not pretended, however, that such was the effect of the dismission of the appeal. It is not denied that its only effect was to replace the judgment in its former condition, leaving its merits still open to examination upon a second or further appeal; and it is impossible for us to say that a judgment has been affirmed which, after the appeal was dismissed, was still liable to be reversed. The allegation that by the lapse of time an appeal is now barred, is plainly irrelevant. The barring of an appeal by. the lapse of time is not an affirmance of the judgment by the appellate court, and it is to such an affirmance only that the undertaking relates.

The bond which the Eevised Statutes required to be given, when a writ of error was brought which was intended to operate as a stay of execution, not only bound the parties to satisfy the judgment, in case it should he affirmed, hut also in case the plaintiff in error should fail to prosecute the writ, or the same should he quashed or discontinued (2 R. S. 596, § 28), and why these additional and very significant provisions have been omitted in the Code, we have been unable to discover, and are at a loss to imagine. We cannot believe that they were rejected by the framers of the Code, as superfluous, in the belief that they were all virtually comprehended in the affirmance of the judgment. If they really intended that the undertaking upon an appeal should be construed as largely as the bond upon a writ of error, it is to he regretted that they have not expressed themselves in terms that could enable us to carry their intention into effect. We cannot depart so far from all sound and safe rules of interpretation, as to adopt a construction which is plainly inconsistent with the settled and sole meaning of the words they have chosen to employ. To affirm a judgment is'by the judicial sentence of an appellate court to declare its validity, and it is a legal solecism to say that a judgment has been affirmed, when the question of its validity is exactly that which the appellate court refused to consider. The Court of Appeals has said that the appeal should be dismissed; but as it has not said that the judgment is either valid or erroneous, we have no more right to say that it has been affirmed than that it has been reversed.

The judgment at special term is affirmed, with the usual liberty to the plaintiff to withdraw the demurrer upon payment of costs.  