
    Samuel McElroy, Resp’t, v. Henry Mumford et al., App’lts.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed December 14, 1891.)
    
    Undertaking—Bar.
    Defendants were sureties upon appeals to the general term and also to the court of appeals. The judgment appealed from was affirmed and action brought on the undertaking given on the appeal to the court of appeals, in which judgment was recovered for the original judgment and. costs of both appeals; which judgment was reversed by general term on-, the ground that that undertaking did not cover the judgment and general term costs. Held, that that action was not a bar to an action on the undertaking given on the appeal to general term.
    Appeal from judgment in favor of plaintiff, entered upon decision of the court.
    Action against sureties on an undertaking on appeal to general term in an action wherein the present plaintiff was plaintiff, and the Brooklyn Underground Bailroad Company was defendant.
    
      Leslie W. Russell and Welton Percy, for app’lts; Frank P. Martin (John 0. Shaw,' of counsel), for resp’t.
   Barnard, P. J.

Upon the appeal in this action from the supreme court to the court of appeals, an undertaking was given- - apparently to cover the costs of the appeal only. . There had been an undertaking given upon the appeal from the trial court to the-general term, which provided for the payment of the judgment- and costs. An action was brought upon the undertaking that was-given upon the appeal to the court of appeals. A judgment was-given thereon for the original judgment, the costs of the general, term and the costs of the court of appeals. Upon appeal the general term concluded that the undertaking was not given to cover the judgment and general term costs, and reversed the judgment. The plaintiff appealed to the court of appeals,- and the decision is-not yet made. This action was brought to recover upon the undertaking given upon the appeal to the general term. Judgment, was given for the original judgment and for the general term costs. The sole question is whether the first action is a bar to-this one. As the record stands it is not. The first judgment is-entirely reversed, and the plaintiff is justified in acting upon the-reversal. If the court of appeals reverse the judgment of the general term, there will be two judgments for the same amount; but there can be but one satisfaction. In this case the sureties are the same in both appeals. If it were otherwise, an action against, the sureties on each appeal would have been rejected.

The judgment should be affirmed, with costs.

Pbatt and Dykman, JJ., concur.  