
    Charles Burrall v. Jacob Vanderbilt and Theodore R. B. De Groot.
    When several defendants, against whom a judgment has been recovered, unite in an appeal, from it, to the General Term, and third persons execute, as sureties, an undertaking on such appeal, in the terms prescribed by section 335 of the Code, such sureties are not discharged from liability, merely because some of such appellants abandon their appeal, if the respondent obtains an affirmance of such judgment.
    Neither are such sureties discharged, because an order is made on the consent of the respondent’s attorney, without their consent, or notice to them, that the Clerk enter on the docket of such judgment, the words, “ secured on appeal,” and such entry is, thereupon, made.
    The facts that, after suit is brought on such an undertaking, the judgment of affirmance is appealed from to the Court of Appeals, and such an undertaking is given as is required, to stay proceedings, in the Court below, on such judgment, cannot be plead in bar, or in abatement of the action, on such undertaking.
    (Before Hoffman and Pierrepont, J.J.)
    Heard, January 12;
    decided, February 6, 1858.
    This action comes before the Court, at General Term, on an appeal by the defendants, from a judgment rendered against them, on the trial of the action, by the Court, without a jury.
    The plaintiff having, on the 4th of April, 1855, recovered a judgment, in this Court, for $1153-90, against Garret Van Cleve, Joseph Carpenter, George R. Jacques, and William H. De Groot; the four persons, last named, on the 17th of April, 1855, appealed from that judgment to the General Term, and the defendants in the present action, executed an undertaking, as sureties for such appellants.
    By such undertaking, the said Jacob Vanderbilt and Theodore R. B. De Groot, did “ undertake, that the said appellants will pay all the costs and damages which may be awarded against them on said appeal, not exceeding two hundred and fifty dollars; and do also undertake, that if the said judgment so appealed from, or any part thereof, be affirmed, the said appellants will pay the amount directed to be paid by the said judgpaent, or the part of such amount as to which the said judgment shall be affirmed, if it be affirmed only in part, and all damages which shall be awarded against said appellants on the said appeal.”
    The present action is brought on that undertaking. The complaint alleges the recovery of the judgment of the 4th of April, 1855, the taking of an appeal from it, the giving of the undertaking in question, the affirmance of the judgment appealed from, with $83 costs of the appeal, recoverable from the appellant, Wm. H. De Groot, the filing of a judgment roll containing the judgment of affirmance, and non-payment of the judgment so affirmed, or of the costs of said appeal, or of any part thereof, and prays judgment for the amount thereof, with interest.
    The defences set up in the answer, are, 1st, that there has not been “ any judgment against said defendants jointly, of affirmance of the judgment appealed from.”
    2. That when said appeal was taken, the judgment appealed from was a lien, on real estate of William H. De Groot, of sufficient value to pay it. After the defendants executed such undertaking, as such sureties, the plaintiff without their consent, or notice to them, permitted said De Groot to have entered, upon the docket of said judgment, the words, “ secured on appeal,” whereby he was enabled to, and did convey all his real estate, and they, thereby, lost, and were deprived of their subrogatory right of indemnity, against said property.
    3. That said De Groot has appealed from said judgment to the Court of Appeals, and perfected his appeal, whereby the right to demand the amount thereof, is suspended until the determination of the said appeal.
    This action was tried in March, 1857, before Mr. Justice Woodruff, without a jury.
    The plaintiff’s counsel read, in evidence, a stipulation in the action, signed by the defendants’ attorneys, which, exclusive of its title, and the signatures to it, is in these words, viz.
    “ It is admitted that a judgment was rendered at special term of this Court, on the 4th of April, 1855, for $1,153 90 cents, against William H. De Groot and others, and that an appeal therefrom to the General Term was taken by the defendants therein, and that on such appeal, the defendants in this action executed and delivered the undertaking in the complaint mem tioned, and on which this action is brought. That the appeal was abandoned by all the appellants, except De Groot, who prosecuted the appeal, and on the appeal, the judgment of the Special Term was affirmed by the General Term on the 23rd day of February, 1856, and judgment of affirmance with costs which were adjusted at Eighty-three Dollars, was on the 28th day of February, 1856, entered with the Clerk of this Court, and the judgment roll filed with him. That notice of the entry of such judgment of affirmance was served upon the defendants in this action, and demand of payment thereof made before this action was commenced. That this action was'commenced by service of summons and complaint, on the 26th day of April, 1856.”
    The plaintiff then rested.
    The defendants’ counsel thereupon read in evidence a stipulation signed by the plaintiff’s counsel, which, exclusive of its title, and the signatures to it, is in these words, viz.:—
    “ The plaintiff stipulates to admit on the trial of this cause, that William H. De Groot appealed to the Court of Appeals from the judgment mentioned in the complaint in this cause, and perfected such appeal on the 9th day of June, 1856, and filed security to effect a stay of proceedings upon such judgment.”
    It was also admitted, that the appeal therein mentioned is still pending, and that the answer in this action was served simultaneously with the notice of said appeal, on the 9th day of June, 1856.
    Said counsel also put in evidence from the records of this Court, produced by the Clerk, the following consent filed November 10,1855, and order made by Mr. Justice Slosson, one of the Justices of this Court thereupon.
    It was admitted by defendants’ counsel that the consent was all in the hand-writing of S. Sanxay, the attorney for De Groot, and that the order was entered by the counsel of De Groot, and that no copy of said order was served upon the plaintiff’s attorneys. Such consent and order, exclusive of their titles, read thus:—
    
      11 Whereas, judgment was rendered on the 4th day of April, 1855, in the above named Court, in favor of the above named respondent, for the sum of $1,153 90 cts., the same having been secured on appeal; it is hereby mutually agreed that an entry be made by the Clerk of this Court, on the docket of said judgment, that the same is secured on appeal,” and that an order to that effect be granted.
    
      “ November 7, 1855.
    “S. SANXAY,
    
      Attorney for De Groot.
    
    BURRILL, DAVISON & BURRILL,
    
      Attorneys for Plaintiff."
    
    (Order op Nov. 10,1855.)
    “ On reading and filing the consent on the part of the respective parties in this action, whereby it appears that the judgment for $1,153 90, recovered in this cause on the 4th day of April, 1855, has been secured on appeal, and on motion of C. N. Potter, of Counsel for the said defendant, De Groot; it is ordered that the docket of the judgment in this cause, and the docket of the transcript thereof in the office of the clerk of the City and County of New York, be on presentation of a certified copy of this order, marked ‘ secured on appeal ’ as by the statute provided.”
    The judge before whom the action was tried, gave judgment for the plaintiff, and his statement of the facts found by him, and of his conclusion of law thereon, is as follows:—•
    “ The facts as established by the evidence are—
    “First. The same as are stated in the stipulation signed by the defendants’ attorneys, hereinbefore set forth; and also those stated in the stipulation read by the defendants’ counsel.
    “ Second. That on the 9th June, 1856, an appeal was taken by William H. De G-root from the said judgment of affirmance to the Court of Appeals, by the service of a notice of appeal and the giving the requisite security for a stay of proceedings upon the judgment appealed from, and that such notice of appeal was served simultaneously with the answer in this action,
    
      “ Third. That the attorney for the plaintiff, at the request of William H. De Grroot, signed the consent, on which the order of the 10th November, 1855, was granted, and that such order was procured from one of the Justices of this Court, without any notice to or intelligence on the part of the plaintiff or his attorney, but on the application of the said De Grroot and his counsel.
    Fourth. That the docket of the original judgment in favor of the plaintiff against said De Grroot, was marked “secured on appeal,” and thereupon said De Grroot conveyed a part of his real estate, which had theretofore been bound by the hen of said judgment, and on the 4th December, 1855, made a general assignment of all his real and personal property to trustees, for the benefit of his creditors. That on the 23d February, 1856, the docket of said judgment in the office of the Clerk of this Court, and of the Clerk of the city and county of New York, were marked thus, “ Judgment affirmed, see Docket 28, February, 1856.”
    Fifth. That there is due to the plaintiff, on the cause of action stated in his complaint, the sum of $1,403 39, for which sum, with his costs, he is entitled to judgment.
    The defendants duly excepted to the Court’s conclusion of law. At the trial they moved a dismissal of the complaint, on the grounds on which they insisted, on the appeal, the judgment should be reversed, and excepted to the decision, denying such motion.
    Judgment having been entered on the decision of the Judge, the defendants appealed from it to the General Term.
    
      S. Sanxay, for defendants and appellants, insisted that each of the grounds of defence set up in their answer, was proved, and that each ground of defence is fatal to the plaintiff’s right to recover.
    
      J. E. Burrill, for plaintiff and respondent.
   By the Court. Pierrepont, J.

The counsel for the defendants claims that, because some of the original defendants abandoned the appeal, that the condition of the undertaking has not been broken.

Section 282 of the Code provides, that whenever an appeal from any judgment shall be pending, and the undertaking requisite to stay execution bn such judgment shall have been given, and the appeal perfected as provided in the Code, the Court in which such judgment was recovered may, on special motion, after notice to the person owning the judgment, in such terms as they shall see fit, direct an entry to be made by the clerk on the docket of such judgment, that the same is 1 secured on appeal,’ and thereupon it shall cease, during the pending of the appeal, to be a lien on the real property of the judgment-debtor, as against purchasers and mortgagees in good faith.”

If the condition of the undertaking is not broken for the reason that a part of the original defendants abandoned the appeal before judgment was affirmed, then all, save one, might abandon the appeal after the real estate of the judgment-debtor had been released, in the manner provided by the Code, and thus the Legislature would have contrived an ingenious method by which a judgment-debtor might clear Ms real estate of the lien of the judgment, sell the estate, and Ms sureties be released from all liability.

We think this objection is not well taken.

The second objection is, that the plaintiff permitted the judgment debtor to have entered on the docket, the words secured on an appeal,” without notice to the sureties.

The entry was made in obedience to an order of the Judge, granted upon application of the attorney of the defendant De Groot, he having obtained the consent of the plaintiff’s attorney that such order be made; neither the plaintiff nor the sureties having had any knowledge of the consent.

The statute does not require notice to the sureties; it only requires notice to the person owning the judgment.” (Livingston v. Roberts, 3 Abb. Pr. R. 231.)

When sureties join in an undertaMng, they are presumed to know the legal effects of their act, and that one of those effects will probably be to release the real estate of the debtor from the lien of the judgment. In most cases that is one of the very objects for which the undertaking is executed.

We do not see that the plaintiff has done anything, in respect to the order, of which the defendant can reasonably complain.

The defendants’ next objection is, that the judgment-debtor has appealed to the Court of Appeals from the judgment of this Court, and perfected his appeal.

This action was commenced on the 26th of April, 1856. On the 9th of June following, the defendant put in his answer, and at the same time served a notice of appeal to the Court of Appeals, from the original judgment, as affirmed by the General Term of this Court.

At the commencement of this suit, then, the plaintiff’s cause of action was complete. If the appeal constitutes a defence, it has arisen subsequent to the commencement of the action.

The Code (sec. 339), like the Revised Statutes (2 R. S. 607), declares that a perfected appeal shall stay “ all further proceedings in the Court below, upon the judgment appealed from, or the matter embraced therein” (except in certain special cases.) .

The provisions of the Code in relation to appeals are the same as those of the Revised Statutes relating to appeals from orders and decrees of the Court of Chancery.

In Burr v. Burr (10 Paige, 169), the Chancellor held that an appeal, perfected after execution levied, did not stay the sheriff from proceeding on the execution, and terms were imposed as a condition to the order, staying proceedings; affirming the same construction previously given by him in the case of Clark v. Clark (7 Paige, 607).

In Cook v. Dickerson (1 Duer, 679), this Court held that a perfected appeal, under the Code, did not of itself stay an execution previously levied.

The case before us is not “ a proceeding in the Court below upon the judgment.” The suit upon the undertaking might have been brought in any Court of competent jurisdiction, as well as in the Court where the judgment had been rendered. The case of Thompson v. Blanchard (2 Comst. 561) differs widely from the one now under consideration, both in its facts and the principles involved.

The only question which this appeal brings before us is one of law; and we find no error in the decision of the Judge. We must, therefore, affirm the judgment, leaving the defendant to move for a stay of proceedings, or to make such other application to the Court, as he may be advised.

Judgment affirmed, with costs. 
      
       Although all of the appellants, except one, abandoned their appeal, yet it is not found that, as to them, the appeal was dismissed or discontinued. On the contrary, it is found that the judgment appealed from was affirmed: It may, perhaps, be said, and justly so, that it was affirmed as to all the defendants, and that the judgment of affirmance is in the same form, and of the same effect, as if all the appellants had sought, on the argument of the appeal, a reversal of the judgment: And that this branch of the attempted defence is, therefore, disproved.—Rep.
     