Opinion
June, 1904.
Edward W.S. Johnston, for the appellant.
Francis Smyth, for the respondent.
This appeal is from a judgment in an action of replevin dismissing the complaint and directing the return to the defendant of certain bonds which had been replevied.
There is no dispute as to the facts. On the 5th of May, 1898, one Michael J. O'Brien recovered judgment in the Supreme Court in this State against this plaintiff and others, as executors of the last will and testament of Peter A.H. Jackson, deceased, for the sum of $758.82. On appeal to this court that judgment was affirmed ( O'Brien v. Jackson, 42 App. Div. 171) and the executors then appealed to the Court of Appeals, and to perfect the appeal and stay execution on the judgment, applied to the defendant to execute an undertaking, which it did, this plaintiff depositing with it certain United States bonds as collateral security for the payment of any sum which it might become liable to pay by reason thereof. The undertaking was given pursuant to the terms of sections 1326 and 1327 of the Code of Civil Procedure, and after reciting the affirmance of the judgment by the Appellate Division, and that the appellants feeling aggrieved thereby intended to appeal to the Court of Appeals, provided: "The Lawyers' Surety Company of New York * * * does hereby, pursuant to the statute in such case made and provided, undertake that the appellants will pay all costs and damages which may be awarded against the appellants on said appeal, not exceeding five hundred dollars, and does also undertake that if the judgment or order so appealed from or any part thereof is affirmed or the appeal is dismissed, the appellants will pay the sum recovered or directed to be paid by the judgment or order, or the part thereof as to which said judgment or order shall be affirmed." The Court of Appeals reversed the judgment and directed a new trial, with "costs to abide the event." ( O'Brien v. Jackson, 167 N.Y. 31. ) After the judgment of the Court of Appeals had been made the judgment of the Supreme Court, the plaintiff demanded a return of the bonds, which was refused, and thereupon the same were replevied.
At the trial the plaintiff moved for judgment upon the ground that the answer admitted all of the material allegations of the complaint, which was denied and an exception taken, and thereupon the defendant — the foregoing facts having been admitted — moved for the direction of a verdict dismissing the complaint and for the return of three of the bonds of the par value of $50 each, or, if plaintiff failed to return them, for judgment for $201, their admitted value at the time of the trial. This motion was granted and the plaintiff excepted. Judgment was thereafter entered to this effect, from which the plaintiff appeals.
I think this judgment should be reversed. The judgment of the Court of Appeals terminated any and all liability of the defendant on its undertaking, and it had no right thereafter to the bonds. This necessarily, as it seems to me, follows from the language used in the undertaking. It is that the defendant undertakes that the appellants will pay any costs or damages which may be awarded against them on the appeal, and also the judgment appealed from or any part thereof which is affirmed. There was no award by the Court of Appeals of costs or damages, and the judgment was affirmed neither in whole nor in part. There was, therefore, nothing upon which a liability of the defendant could be predicated. The undertaking had fulfilled its purpose, and after the judgment of the Court of Appeals it ceased to exist as an instrument upon which a liability could be predicated in that action. The fact that the judgment was reversed, with costs to abide the event, has no bearing upon the question presented and affects in no way defendant's liability. The costs which the defendant undertook to pay were such as might be awarded by the Court of Appeals. The right to costs now depends, not upon an award made by the Court of Appeals, but upon the result of a trial of the action in the Supreme Court. If the respondent's contention be correct, then unless the action is tried, settled or compromised, it can always keep the bonds. The sections of the Code of Civil Procedure ( supra) under which the undertaking was given are similar to section 3050 of the Code of Civil Procedure, which has been construed in substantially the same way as we construe these sections. ( Janeway v. Haft, 46 N Y St. Repr. 917.)
In reaching this conclusion we have not overlooked the authorities cited in the opinion of the learned trial justice, but from an examination of them it appears that they have no bearing upon the question presented.
The judgment appealed from, therefore, must be reversed, with costs, and inasmuch as there is no dispute as to the facts, judgment is directed for the plaintiff for the relief demanded in the complaint, with costs.
PATTERSON, INGRAHAM, HATCH and LAUGHLIN, JJ., concurred.
Judgment reversed, with costs, and judgment directed for plaintiff as stated in opinion, with costs.