
    Hobart Onderdonk v. James Emmons and George Kuhn.
    To make an. appeal from a judgment of the Marine or district courts effectual under section 354 of the Code, as amended in 1858, the appellant must deposit with the clerk of this court the costs and disbursements embraced in the judgment appealed from, together with $15 to cover the costs on the appeal; or must give an undertaking to pay the costs awarded in the court below, together with all costs and damages which may be awarded against him on the appeal in this court.
    But the deposit or undertaking thus required by section 354 does not operate to stay execution on the judgment appealed from.
    If such a stay is desired, an undertaking must be given, as prescribed by section 356, to the effect that if the judgment be affirmed, and execution thereon be returned unsatisfied, in whole or in part, the sureties will pay the amount unsatisfied.
    Upon the first undertaking the liability of the sureties is fixed the moment the judgment is affirmed; but on the other it is essential that an execution on the judgment shall be returned unsatisfied before the sureties can be charged.
    On an affirmance, a judgment to that effect is entered in the appellate court, with the costs of the appeal; and to collect such costs, an execution may be issued, or the undertaking first given under section 354 may be prosecuted. If the proceedings on the judgment appealed from have been stayed by an undertaking under section 356, the stay ceases, and an execution may be issued upon the judgment in the court below.
    The appellant, on an affirmance, entered judgment in this court for the amount recovered in the court below, together with the costs and disbursements on appeal. After an execution thereon was returned unsatisfied, an action was brought against the sureties to an undertaking given on the appeal in the form prescribed by section 354. The justice gave judgment for the full amount of the judgment thus entered; 2éM,
    I. That the judgment, having been merely an affirmance, should have been so entered, with costs of appeal.
    II. That such a judgment would not authorize an execution to issue from this court to collect any sum but the costs of appeal.
    III. That the defendants were only liable on their undertaking for the costs embraced in the judgment appealed from, and the costs in this court, and the judgment of the justice should be reduced to that amount.
    The “ damages " mentioned in section 354 applies to those cases where, on an appeal, a recovery is had by one party and costs awarded to the other, (see § 3Y0), and a set-off is ordered and judgment given in the appellate court for the balance; such balance, if against the appellant, would be in the nature of damages against him upon appeal.
    Appeal from a judgment of the Fifth District Court. The action was upon the following undertaking, given on the appeal therein mentioned, and signed by the defendants as sureties:
    DISTRICT COURT IN THE CITY OF NEW YORK FOR THE FIFTH
    DISTRICT.
    Hobart Onderdonk, Respondent, against William F. Trask, Appellant.
    Whereas, on the fourth day of August. 1858, in the District Court in the city of New York, for the fifth district, the above named respondent recovered a judgment against the above named appellant for two hundred and twenty-five dollars damages, and costs, five dollars—total, two hundred and thirty dollars; and the above named appellant, feeling aggrieved thereby, intends to appeal therefrom to the Court of Common Pleas for the city and county of New York. Now, therefore, we, William. F. Trask, of No. 134 Sixth avenue, in the city of New York, and James Emmons, of No. 268 West 33d street, in the city of New York, and George Kuhn, of No. 273 Bowery, in the city of New York, do hereby, pursuant to the statute in such case made and provided, undertake that the said appellant will pay all costs, disbursements and extra costs awarded against him in the court below, if such judgment shall be affirmed by the appellate court on such appeal, together with all costs and damages which may be awarded against him thereon. Wm. F. Trask,
    James Emmons,
    Dated August 4, 1858. George Kuhn.
    The plaintiff at the trial, after producing this undertaking as the ground for his action, read in evidence a judgment record of this court upon the appeal referred to, and which, after reciting the affirmance, awarded judgment for the appellant for $245.16, being the amount of the judgment appealed from, with the costs upon the appeal added. Thereupon the justice gave judgment in favor of the plaintiff for the $245.16, with $12 costs. The defendants appealed.
    
      Thomas W. Smith, for the appellants.
    
      Samuel Jones, for the respondent.
   By the Court, Daly, First Judge.

This judgment is erroneous. Before the amendment of 1858, no undertaking was necessary upon an appeal, unless the appellant desired a stay of execution; nor would an appeal stay execution unless an undertaking was given pursuant to § 356. Conway v. Hitchens, 9 Barb. 378. By the amendment of 1858, it -was declared that an appeal should be ineffectual unless the appellant deposited with the clerk of this court the costs, disbursements and extra costs embraced in the judgment appealed from, together with $15 to meet any costs that might be awarded against him in this court upon the appeal, or, if such deposit was not made, unless he should execute an undertaking to the effect that he would, in the event of the affirmance of the judgment by this court, pay all costs, disbursements and extra costs that had been awarded against him in the court below, together with all costs and damages that might be awarded against him upon the appeal in this court.

The object of this provision is very plain. Before its enactment the prevailing party in the court below had no security for the costs incurred by the appeal, but was left to collect them by an execution issued upon the judgment of affirmance in this court. If an undertaking was given to stay execution, that undertaking covered them, as the sureties undertook to pay any amount remaining unsatisfied upon the return of an execution issued upon a judgment rendered against the appellant; but, unless there was such an undertaldng, they were not secured to the party who had recovered the judgment in the court below. He might go on and collect the judgment in the court below, and if it was afterwards reversed, the appellate court would order him to restore what he had collected, with interest from the time of payment or collection. This provision for an undertaking, or a deposit, to render the appeal in any case effectual, is a security not only for the costs upon the appeal, but also for costs and disbursements incurred in obtaining the judgment in the court below. It does not operate as a stay of execution, for the 355th and 356th sections were left unchanged when this amendment was made, and they declare that if the appellant desire a stay of execution he shall give the undertaking provided for in the 356th section.

It is fair to assume, that if it was the intention of the legisla ture that the new undertaking should be a substitute for the former one, and should operate as a stay of proceedings, that they would have repealed the two sections referred to; but as they suffered them to remain, we must take the three sections together, and, taking them together, it is-observable that the two undertakings differ. In the new one the liability of the sureties is fixed for the costs, disbursements, and extra costs in the court below, and the costs and damages are awarded against the appellant, upon the appeal, the moment the judgment is affirmed: In the other, or former undertaking, the sureties are not liable unless an execution upon a judgment rendered against the appellant is returned unsatisfied, when they are liable for the amount which may remain unsatisfied. In the one case the return of an execution is essential before they can be charged. In the other, their undertaking or promise is qualified by no such condition.

As there is this difference, then, and as section 355 is imperative that the undertaking provided for in section 356 must be given to stay execution, it seems to follow that the new undertaking provided for in the amendment of section 354 was designed to be a distinct and different undertaking, and not intended as a substitute for the other. As the new undertaking must be given to render the appeal effectual in any case, and the other if the appellant wishes to stay the execution, it is necessary to ascertain the exact extent and scope of the two instruments.

As respects the former one there is no difficulty, as it covers any amount which may remain unsatisfied after the return of an execution upon a judgment rendered against the appellant. As it stays the issuing of an execution upon the judgment below, or all further proceedings if one has been issued, thus preventing a return until the judgment of the appellate court has been given, (Smith v. Allen, 2 E. D. Smith, 259), it embraces whatever is included in the judgment below, or which may remain due after the return of the execution which has been issued upon it. The new undertaking, however, extends only to the costs, disbursements'and extra costs, which form a part of the judgment of the court below,.and the costs and damages awarded against the appellant upon the affirmance of the judgment by this court If the judgment is affirmed, costs are and must be awarded to the. .respondent, (Logue v. Gillick, 1 E. D. Smith, 398); and they are collectable by an execution issued upon the judgment of the appellate court-, or may now be obtained bjr an action upon the new undertaking, which the appellant is in every case required to give.

If no undertaking has been given to stay execution under sections 855 and 356, the respondent proceeds and enforces his judgment by execution in the court below; and if one has been given, the stay is at an end upon the affirmance of the judgment by this court, and he is then at liberty to proceed with his execution in the court below, and enforce that judgment. The costs awarded to him upon the appeal he obtains by an execution in this court, or by an action against the sureties who have become bound for their payment. But this new undertaking embraces also damages which may be awarded against the appellant upon the affirmance of the judgment, and it appears, in this case, that the judgment entered in this court, upon the affirmance of the judgment of the court below, after reciting that the respondent recovered judgment in the court below for $230 damages, and costs, and that the judgment so recovered was duly affirmed by this court at general term—then declares that it is adjudged that the appellant do recover $230, the amount of said judgment, together with fifteen dollars and sixteen cents for the costs and disbursements upon the appeal, amounting in the whole to $245.16.

It is insisted that there is an award of $230 damages against the appellant upon the affirmance of the judgment, which is embraced in the undertaking given by the defendants under section 354. I do not so regard it. This is simply a judgment of affirmance. It appears that the general term merely affirmed the judgment of the court below, which would not authorize an execution to be issued in this court upon the judgment to enforce the payment of any sum but the $15.16 costs and disbursements upon the appeal. For all that appears in this case, the judgment below may have been paid and satisfied before it was affirmed.

But we are asked what is meant in this new undertaking by damages which may be awarded against the appellant upon the affirmance of the judgment; the answer to which is, that there may be cases in which it is necessary, and in which this court is empowered, to render judgment against the appellant, to be enforced as a judgment of this court, for a sum beyond the cost of the appeal; as for instance, under section 870, where, if a recovery be had by one party, and costs be awarded to the other, we are required, as the appellate court, to set off the one against the other, and render judgment for the balance, which would necessarily be enforced as a judgment of this court, and if the balance was against the appellant, it would, in the language of this new undertaking, be an awarding of damages against him upon the appeal. All that the plaintiff could recover in this action was $20.16. That is, $5 for the costs, disbursements and extra costs included in the judgment below, and $15.16 costs of the appeal. For that amount the judgment should be affirmed, and reversed as to the residue.

Judgment accordingly.  