Opinion
October, 1916.
Martin Clark, for plaintiff.
Sanders Hamilton, for defendant.
This is an action on a surety bond. Judgment was entered in County Court, Erie county, and an appeal was taken to the Appellate Division, Supreme Court, where a decision was made modifying the judgment and affirming it as so modified, without costs. An order was entered in the office of the clerk of the Appellate Division accordingly and thereupon the plaintiff entered a judgment in County Court reciting the appeal to the Appellate Division, the decision of that court modifying and affirming the judgment appealed from as so modified, and ordering and adjudging that the judgment as modified be affirmed, and setting forth the judgment in detail as so modified. The defendant therein served a notice of appeal to the Court of Appeals from the order of the Appellate Division and gave as security the bond in question covering costs and also providing "That if the judgment appealed from is affirmed, or the appeal is dismissed, the appellant will pay the sum recovered or directed to be paid by the judgment, or the part thereof as to which it is affirmed." The Court of Appeals dismissed this appeal "on the ground that the appeal is taken from an order of the Appellate Division and not from a judgment."
The plaintiff in this action sues on the bond and claims to recover the amount of the judgment of the County Court. The defendant surety company urges that it is not liable because no judgment was appealed from, that an appeal from an order was unauthorized and a nullity, and that there was not and could not be any sum directed to be paid by the judgment, because no judgment existed which could form the basis for an appeal to the Court of Appeals.
The requirement of the Code in appeals from the County Court is different from that in an appeal from the Supreme Court. Section 1345 of the Code prescribes that "A judgment or order of the appellate division rendered upon an appeal authorized by this title [appeal to the supreme court from an inferior court] must be entered in the office of the clerk of the appellate division." The reason for this is obvious. Unless and until a judgment of the Appellate Division has been entered, no appeal lies to the Court of Appeals, and the defeated party would be deprived of his right of appeal. Entering an order of the County Court making the judgment of the Appellate Division the judgment of the County Court does not avail because there is no judgment of the Appellate Division of record. See Knapp v. Roche, 82 N.Y. 366.
Judgment for defendant.