
    SUPREME COURT.
    Thomas S. Grimwood, respondent, agt. William M. Wilson et al., appellants.
    
      Undertaking on appeal—To be executed, by at least two sureties—Defective when signed by two sureties, one of which is plaintiff— Code of Procedure, sections 348, 335 — Code of Oivil Procedure, sections 1337, 1334.
    Where a person signs an undertaking given on appeal in an action as surety, with the express understanding that it was to be executed also by another surety, and the law requires two sureties to an undertaking that would operate as a stay, such surety is not liable on the undertaking if it be filed without a second surety being obtained.
    
      First Department, General Term, December, 1883.
    
      Before Davis, P. J., Beady and Daniels, JJ.
    
    
      Appeal from judgment, entered upon decision of the court at circuit without a jury.
    
      Sidney Harris, for appellant.
    
      Wilbur F. Scott, for respondent.
   Davis, P. J.

— This action was brought upon an undertaking, given on appeal to the general term of this court, in an action of Qrimwood agt. Hrbin, the co-defendant of the appellant. The undertaking was executed by TJrbin, the appellant in that suit, and Wilson, the present appellant. The defense interposed was to the effect that when TJrbin applied to Wilson to execute the undertaking he requested him to be one of two sureties therein ; that Wilson declined, but, upon TJrbin’s representation that one Charles F; Hunter, president of the People’s Bank, or some other responsible person, would execute the undertaking as the other surety. Wilson signed, on condition that Mr. Hunter or another responsible surety should execute the same. The undertaking executed by TJrbin and Wilson alone' was afterwards filed, no second surety having been obtained. The judgment appealed from was subsequently affirmed, and this action was brought against TJrbin and Wilson upon the undertaking.

The only evidence in the case was that of the defendant Wilson and his son, whose testimony tended to show that Wilson executed the undertaking upon the condition that Mr. Hunter or some other responsible person should sign the same as co-surety with him.

There was no evidence in the case tending to show that Wilson had in any form consented to waive the execution of the instrument by another surety, or that he knew the fact that it had been filed without obtaining such surety. Hpon filing the undertaking a copy thereof was served upon the plaintiff’s attorney, and no steps were thereafter taken to require the surety to justify or to enforce the judgment pending the appeal.

The undertaking was made at a time when the old Code was in operation. Section 335 of that Code provided that an appeal from a judgment directing the payment of money should not stay the execution of the judgment, unless a written undertaking be executed on the part of the appellant by at least two sureties. The fact that TJrbin, the appellant, also executed the undertaking was not a compliance with this requirement (Moss agt. Hasbrouck, 63 How., 84). He was not a “ surety ” within the meaning of the Code, and could not be made one, because he was the principal against whom the judgment had been recovered, and incurred no additional liability by the execution of such an undertaking.

The court below refused to find upon the evidence, the facts which the evidence tended to establish, and being uncontradicted did establish, and. exceptions were taken to such refusal. This refusal was undoubtedly made upon the ground that the execution and filing of the undertaking were such acts as precluded the appellant Wilson from proving the alleged defense, to wit, that he executed upon condition that another surety should be obtained. It seems to be very well settled in this state that where a surety signs a bond upon condition that it is not to be delivered until another person becomes a party to it, the delivery in violation of that condition will not be effective against him (People agt. Bostwick, 32 N. Y., 445; Bookstaver agt. Jayne, 60 N. Y., 150; Benton agt. Martin, 52 N. Y., 570, 574).

The case of The People agt. Bostwick was questioned by the same court in Bussell agt. Freer, but it was not necessarily overthrown, because the court held that the facts of Bussell agt. Freer did not bring the case within the principle of The People agt. Bostwick.

In this case the appellant had a perfect right to require that the undertaking should be executed by another surety, because the Code itself expressly requires that the instrument should have at least two sureties in order to be of any effect; and where such an instrument is executed upon that express condition or understanding, we see no good reason why the principal and the party in whose favor it is made should be at liberty, by waiving the requirements of the statute, to fix a liability upon the appellant greater than that which a compliance with the statute, and with the conditions upon which he signed the instrument, would impose.

The undertaking was of no operative effect to stay proceedings upon the judgment, unless it could be made so by the waiver of the plaintiff in the judgment to enforce his statutory rights; but that waiver could not get rid of the condition which the plaintiff had attached to his execution and to the delivery of the undertaking. Parties must be presumed to know the law. And, therefore, the surety in this case - may well be presumed to know that the instrument he had signed would not be operative until another surety had joined in it. There was nothing unreasonable, therefore, in the evidence which tends to establish that the undertaking was not to be delivered until another party would join, and that the execution by the appellant was upon that condition.

The plaintiff also must be presumed to know that the law requires two sureties to an undertaking that would operate as a stay, and if he, therefore, of his own motion, chose to waive that requirement and to accept the instrument with one surety, he ought at least to have been sure that the single surety had consented to accept the responsibility thrown upon him by the absence of another surety.

We think the judgment should be reversed and a new trial ordered, with costs to abide the event.

Bbady, J., concurred.

Daniels, J.

— As the plaintiff was deprived of no right, nor delayed in the collection of the judgment by the giving of the undertaking, the failure to comply with the conditions imposed by the defendant subscribing it as a surety was a defense. If in the form in which it was filed it would have created a stay, then the surety would probably be precluded by that circumstance from denying his liability upon it. But it did not. As there was but one surety it did not stay, or in any form prevent the plaintiff from collecting his judgment (Code Pro., secs. 348, 335). I agree, therefore, with the opinion of the presiding justice.  