
    Richard Hoag, App’lt, v. Henry M. Prime and Ano., Resp’ts.
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed May 27, 1889.)
    
    TTkdebtakin’G—Appeal—Liability of sureties—Code Civil Procedure,. §§ 812-1331.
    The liability of sureties to an undertaking on an appeal is limited by the amount mentioned in the undertaking,
    Appeal from a judgment entered upon a decision of the special term.
    Action upon an undertaking given upon appeal, to the-general term from a judgment of foreclosure rendered in an action to foreclose a mortgage.
    The undertaking was conditioned that if the judgment, appealed from was affirmed, “ the appellant would pay any deficiency which might occur upon the sale, in discharging the sum to pay which the sale was directed, with interest, and the costs and all expenses chargeable against the proceeds of sale, not exceeding the sum of $250.”
    The sum of $250 was the amount fixed by a judge of the court below.
    The judgment was affirmed; a sale was had; and upon such sale, there was a deficiency to the amount of $835.71.
    Before action, defendants duly tendered to plaintiff the sum of $250, which was refused.
    Plaintiff claimed judgment for the full amount of the deficiency, $835.71.
    
      Judgment was rendered for the sum tendered ($250).
    
      A. W. Boynton, for app’lt; F. A. Rowe, for resp’ts.
   Per Curiam.

The liability of the defendants was limited by the amount mentioned in the undertaking. That was the amount fixed by the justice, in pursuance of section 1331, last sentence. It is important to the sureties that they should know the limit of their liability, and that they be enabled to justify, under section 812.

We have no doubt that the justice who tried the case decided correctly.

Judgment affirmed, with costs to respondents, which may be set off against the recovery.  