
    Robinson, Receiver, &c., v. Plimpton et al.
    
    The sureties on an appeal from an order made at a special term of the Supreme Court, which was reversed at general term, are not thereby discharged, but are liable upon the affirmance of the first order by this court, on an appeal to which they were strangers.
    It is immaterial that the judgment of this court was made the judgment of the Supreme Court at a special and not at a general term.
    Appeal from the Superior Court of the city of Buffalo. The defendants demurred to the plaintiff’s complaint, upon an undertaking given under the 335th section of the Code, on appeal by one of the stockholders of the bank, to the general term of the Supreme Court, from an order of the special term, confirming the report of a referee apportioning the debts of the bank among the stockholders, and rendering judgment against the appellant for his share of such debts. The undertaking was in accordance with the statute, and provided that, if the judgment appealed from or any part of it should be affirmed, the appellant should pay the amount directed to be paid by the judgment, or the part as- to which it should be affirmed, if affirmed only in part, and all damages which should be awarded against the appellant on said appeal. The judgment at the special term was reversed at the general term; but on appeal to this court the judgment at the general term was reversed, and that of the special term affirmed, and the record and proceedings were remitted to the Supreme Court to be proceeded upon according to law. The judgment of the Court of Appeals was at special term made the judgment of the Supreme Court, and then upon the judgment so affirmed not being paid, this action on the undertaking was. commenced; the complaint stating the foregoing facts. The Superior Court "overruled the demurrer, and the defendants appealed to this court.
    
      Chauncey Tucker, for the appellants.
    
      John Ganson, for the respondent.
   Allen, J.

The appellant, for whom, the defendants were sureties, had the benefit of his appeal and of the stay of proceedings upon the judgment appealed from, as the result and in consequence of the undertaking in suit; and the question now is, whether the erroneous judgment of the Supreme Court, reversing the judgment appealed from, worked a release of the sureties, notwithstanding the error was corrected upon appeal to this court, and the original judgment ultimately affirmed. The undertaking was in the form prescribed by the Code (§§ 335, 348); and by it the defendants undertook that, if the j udgment should be affirmed, the appellant would pay the amount thereof. In terms, the undertaking does not restrict the liability of the defendants to the contingency of an affirmance of the judgment by the Supreme Court. The condition may as well refer to an affirmance by the judgment of any court to which the cause may go by appeal, or the final decision of the action in the court of last resort. There was no reason for making the undertaking effectual only upon the first appeal, and for the judgment of a court which was not necessarily final; and the statuté, and the undertaking given in pursuance of it, have respect to the final determination in the court of last resort, or the last court to which the parties may take it by appeal. The cause is the same in every court, and the question in each is the same, to wit, whether the first judgment—that appealed from by the defendants’ principal— was erroneous and should be reversed, or was right and should be affirmed. The condition is, in substance, for the ultimate affirmance of the judgment appealed from.

Upon the most literal and strict reading of the undertaking, the defendants became liable upon the filing of the remittitur from this court, and the entry of the proper judgment in the Supreme Court. The first judgment of that court became as if it had never been pronounced; and the judgment entered in pursuance of the decision of this court was one in affirmance of the judgment first appealed from. That the remedy of the plaintiff was suspended, or, rather, that the defendants’ liability was in suspense, pending the appeal to this court, does not affect the question. Uor is there anything in the suggestion that the defendants were not parties to the appeal to this court. They consented to become liable upon a contingency, which has happened, and for the result of an action of which they had no control and to which they were not parties, and are bound, not because they were parties to either appeal, but by the terms of their undertaking.

The principle is well settled in cases entirely analogous. The security given by a non:resident plaintiff on obtaining a warrant from a justice of the peace was held to extend to the final determination of the cause, when carried by appeal to the Court of Common Pleas, and that the sureties were not discharged-by a recovery before the justice which was reversed. (Traver v. Nichols, 7 Wend., 434.) The like decision was made in this court, in an action upon a bond given on the issuing of an attachment by a justice of the peace against a non-resident debtor, under section 33 of chapter 300 of the Laws of 1831. (Bennett v. Brown, 20 N. Y., 99.) To the same effect is Ball v. Gardner (21 Wend., 270); both cases holding that a bond given by a party, on suing out an attachment from a justice’s court, conditioned to pay all damages, &c., if he fail to recover, extends to the final determination of the cause. In Smith v. Crouse (24 Barb., 433), it was decided that when a party, on appealing to the County Court from the judgment of a justice of the peace, executed an undertaking, conditioned that, if a judgment shall be rendered against the appellant, &c., the obligees would pay the amount, &c., and the County Court reversed the judgment, and, on appeal to the Supreme Court, that court, reversed the County Court and affirmed the judgment of the justice, the sureties were liable upon their undertaking. That case appears to have been well decided, and the principle involved is decisive of this appeal!

The judgment should be affirmed.

Selden, J.

It is claimed by the defendants that the facts do not show any breach of the conditions of their undertaking, on the ground that the judgment has not been affirmed on their appeal. First: They insist that, on the reversal by the general term of the judgment of the special term, they were absolutely discharged, and could not be again made liable, without their assent, by the order of another court in an appeal to which they were strangers. Second: That the judgment has never been affirmed by the general term, to which the appeal was brought; and that neither the judgment of the Court of Appeals, nor the order of the special term carrying that judgment into effect, is such a judgment of affirmance as is contemplated by the statute or by their undertaking.

The judgment of the general term, reversing that of the special term, so long as it remained in force, was effectual as a bar to a suit on the undertaking; but it was a conditional, and not an absolute, discharge of the sureties. The general term itself might have seen fit to vacate its own judgment, and on rehearing might have affirmed the judgment appealed, from, and in that case the liability of the sureties could not be doubted. The substance of their obligation was, that if on the final termination of the appeal the judgment should be affirmed, in whole or in part, it should be paid, so far as affirmed, with daipages and costs. If the first judgment of the general term had been against the appellant, the defendants would not have been absolutely concluded by it, so long as they had any means of obtaining a contrary judgment, either by a direct application to that court, or by calling in the aid of a higher court to correct their errors, if they had committed any. They were holden to abide the final judgment, upon their appeal, and the judgment of the appellate court, produced by the mandate of a higher court, has the same effect as if it had been arrived at without the interposition of such higher court. It is the final judgment upon the original appeal. This disposes of the first objection, and it would dispose of the whole defence, if the order making the * judgment of the Court of Appeals thé judgment of the Supreme Court had been made at the general instead of the special term, as it no doubt might have been, being an order of course, and usually made on motion of the prevailing party without notice to the other party. (2 Cowen, 510; 1 Wend., 25; 7 Paige, 110.) The order by the special term, however, was in accordance with the usual practice^ and I think was as effectual to charge the defendants as if it had been made by the general term. If the statute had authorized an undertaking that the judgment should be paid if affirmed by the general term, and the undertaking had been, framed accordingly, I am inclined to think that the defendants’ objection, although technical merely, would be well taken. That, however, is not the substance of their engagement. It is, that if the judgment shall be affirmed “on said appeal.” It has been so affirmed, according to the regular course of ■ judicial proceedings, as they were usually conducted when the appeal was brought.

It is not necessary to decide the question, whether the judgment of the Court of Appeals, without the formality of making it the judgment of the Supreme Court, would have fixed the defendants’ liability.

The judgment of the Supreme Court should be affirmed.

All the judges concurring,

Judgment affirmed.  