
    Simon Sterne, Resp’t, v. Elisha H. Talbott et al., App’lts.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed October 18, 1895.)
    
    1. Appeal bond—Action on.
    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.
    2. Same—Counterclaim.
    In such case, securities in the hands of the creditor are not available to the sureties as a counterclaim, nor even as a set-off.
    3. Same—Notice of judgment,
    The provision of section 1309 of the Code, which requires 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 an undertaking given on appeal to the court of appeals.
    
      4. Same—Proof of non-payment of judgment.
    In an action upon an undertaking on appeal, & prima facie case is made out as to the non-payment of the judgment appealed from, where it, uncanceled, is put in evidence, in the absence of any allegation of payment in the answer, and of any evidence of payment given or offered by the defendants. '
    Appeal from a j udgment entered on a verdict directed by the court in favor of plaintiff, and from an order denying motion for a new trial, made on the minutes.
    
      A. A. Greenhoot, for app’lts.; B. Bllery Anderson, for resp't.
   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. 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, and that more than ten 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. Hone 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 fifteen 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:

“Iserved 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 $3,160.63.”

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 the 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; Third National Bank v. Shields, 55 Hun, 274; 28 St. Rep. 505. This case is not within any of the exceptions to the rule, no special equities being alleged in the answer, not even that Charles 3?. 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 Mete. [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. Atwater v. Spader, 12 St. Rep. 506; Cornell v. Donovan, 14 Daly, 295; 14 St. Rep. 687; Furber v. McCarthy, 54 Hun, 435; 27 St. Rep. 294; Wickham v. Weil, 43 St. Rep. 155; Delaney v. Miller, 78 Hun, 18; 60 St. Rep. 481; same case on second appeal, 84 Hun, 244; 65 St. Rep. 834. 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 uncancelled 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 fade 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.  