
    Samuel McElroy, Resp’t, v. Henry Mumford et al., App’lts
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed February 9, 1891.)
    
    Undertaking—Appeal—Liability of sureties."
    A judgment recovered by plaintiff against a railroad company having been affirmed by the general term, with costs, the company appealed to " the court of appeals, and gave an undertaking executed by defendants, which recited the recovery of judgment for * • costs of affirmance, ” and conditioned for the payment by the appellant of all costs and damages which may be awarded against it on said appeal, not exceeding $500, and also that if the said judgment, so appealed from, or any part' thereof, is affirmed, or the appeal dismissed, the appellant will pay the sum recovered, or directed to be paid by the judgment, or the part thereof as to which it is affirmed. Held, that the judgment mentioned which defendants undertook to pay was the judgment for costs at general term, and they could not be held liable for the original judgment.
    Appeal from judgment in favor of plaintiff.
    Action upon undertaking given by the Brooklyn Underground Bailroad Company upon an appeal to the court of appeals.
    
      Leslie W. Bussell (Welton Percy, of counsel), for app’lts; T. G. Oronin, for resp’t.
   Dykman, J.

The plaintiff in this action recovered a judgment against the Brooklyn Underground Bailroad Company in the supreme court in June, 1887, for the sum of $365,908, which was affirmed in the general term and judgment was entered upon such affirmance for $122.97 costs.

Upon appeal to the court of appeals the following undertaking was executed by the defendants in this action:

“Whereas, on the 12th day of December, 1887, in the New York supreme court, county of Kings, Samuel McElroy, the above-named respondent, recovered a judgment against the Brooklyn Underground Bailroad Company, the appellant, for the sum of $122.97, being costs of affirmance and with interest thereon from that date.
“ And the said appellant feeling aggrieved thereby intends to appeal therefrom to the court of appeals.
“Now, therefore, we, Henry Mumford, residing at No. 218 Quincy street, in the city of Brooklyn, and John French, residing at No. 469 Clinton avenue, in Brooklyn city, do hereby, pursuant to the statute in such case made and provided, jointly and severally undertake that the appellant will pay all costs and damages which may be awarded against it on said appeal, not exceeding $500, and do also undertake that if the said judgment so appealed from, or any part thereof, is affirmed or the appeal is dismissed, the appellant will pay the sum recovered, or directed to be paid by the judgment or the part thereof as to which judgment is affirmed.
“Dated December 21, 1889.
“John French.
“Henry Mumford.”

The judgment of the general term was affirmed by the court of appeals, and a judgment was entered upon such affirmance for $121.72 for costs in that court in favor of the plaintiff against the defendant.

This action was commenced upon the undertaking so given upon the appeal to the court of appeals, and the plaintiff obtained a judgment for the amount of' the original judgment, together with the subsequent judgments for costs on the appeals, and the defendants have now appealed from such judgment.

The question presented is whether the plaintiff can hold these defendants, who were the sureties in the undertaking on the appeal to the court of appeals, for the amount of the original judgment in his favor, or only for the amount of the judgments of the general term and the court of appeals.

As the order appealed from affirmed a judgment which directed and required the payment of a sum of money, the form of the undertaking on such appeal is prescribed by § 1332 of the Code of Civil Procedure, as follows: “ Where the judgment or order from which an appeal is taken to the court of appeals affirms a judgment or order to the effect specified in either of the last five sections, the undertaking must be the same as if the judgment or order from which the appeal is taken was to the same effect as the judgment or order so affirmed.” That is, it must be in the same form as if the judgment appealed from rendered a judgment, or was a judgment similar to, or to the same effect as the one which it affirmed.

The undertaking must be so drawn as to secure the payment of the judgment affirmed by the judgment from which the appeal is taken to the court of appeals, or, in other words, the sureties in an undertaking upon an appeal to the court of appeals must be made liable for the payment of the original judgment, and such liability must be imposed by the terms of the instrument.

This undertaking, as we have already seen, recites the recovery of a judgment in the supreme court by the plaintiff against the Brooklyn Underground Railroad Company for $122.97, being costs of affirmance with interest, and the grievance of the defendant thereby, and its intention to appeal therefrom to the court of appeals, and that therefore the defendants, pursuant to the statute, undertake that the appellant will pay all costs and damages which may be awarded against it on such appeal, not exceeding $500, and also undertake that if the said judgment so appealed from or any part thereof is affirmed, or the appeal is dismissed, the appellant will pay the sum recovered or directed to be paid, or the part thereof as to which judgment is affirmed.

There was but one judgment mentioned which the defendants undertook to pay in the event of affirmance, and that was the judgment for costs of the general term of $122.97, and there is no principle upon which their liability can be extended beyond the terms of the instrument which they signed. That instrument in no way mentions or refers to the original judgment, and they never undertook its payment These views are in accordance with the expressions in the case of Morss v. Hasbrouck, 10 Abb. N. C., 407, and. Briggs v. Brown, 13 id., 481, and are not hostile to the case of Goodwin v. Bunzl, 102 N. Y., 224; 1 N. Y. State Rep., 405.

The judgment should be.reversed, with costs.

Barnard, P. J., concurs; Pratt, J., not sitting.  