Summary
In Goodwin v. Bunzl, 102 N.Y. 224, the undertaking was not in the form prescribed to stay proceedings on an appeal, but the attorneys on both sides treated it as appropriate and effectual for that purpose, and no proceedings were taken to enforce the judgment until after the determination of the appeal.
Summary of this case from GEIN v. LITTLEOpinion
Argued March 24, 1886
Decided April 13, 1886
Melville H. Regensburger for appellants. Wm. F. MacRae for respondents.
Under the Code no security is required to perfect an appeal to the General Term from a judgment. It is necessary only when the appellant desires a stay of proceedings pending the appeal. (Code, § 1351.) The giving of the undertaking in this case was, therefore, an idle ceremony, unless it was intended to secure this object. The attorneys on both sides treated the undertaking as appropriate and effectual for that purpose. It was signed and acknowledged by the sureties, was approved by a judge, and filed in the office of the clerk, and a copy was served on the plaintiffs' attorneys, accompanied with a written notice by the defendants' attorney. The plaintiffs' attorneys at first excepted to the sufficiency of the sureties, but afterward, upon the request of the attorney for the defendants, and upon his assurance that the sureties were responsible, withdrew the objection and consented to accept the undertaking, and they took no proceedings to enforce the judgment until after the determination of the appeal. The transaction was in legal effect a forbearance on the part of the plaintiffs, at the request of the defendants, to pursue their legal remedy against the defendants, pending the appeal, in consideration of the undertaking. The undertaking was in the form prescribed by section 1327 of the Code for undertakings to stay execution on money judgments. It was not in the form of the statutory undertaking prescribed for undertakings to stay proceedings on an appeal from a judgment for the recovery of chattels. (Code, § 1329.) But the undertaking was not illegal; it was not taken colore officii ( Cook v. Freudenthal, 80 N.Y. 202), and it is founded on a good consideration. It should be held, we think, to inure as a good common-law agreement, enforceable according to its terms. ( Decker v. Judson, 16 N.Y. 439.) This conclusion accords with the sense of justice, and is not precluded by the authorities. The case of Post v. Doremus ( 60 N.Y. 371) was put upon two grounds: first, that there was no consideration for the defendants' promise, and, second, that the event upon which the liability depended, had not happened. In this case there was ample consideration, and the liability of the sureties, according to the terms of the contract, was established by proof that the judgment was affirmed on the appeal as to two of the defendants ( Seacord v. Morgan, 3 Keyes, 636), and that execution against them had been returned unsatisfied, and that the property had never been delivered to the plaintiffs. The point that the subsequent proceedings on the new trial, in which judgment found in favor of Wertheimer, discharged the defendants, is, we think, untenable.
The judgment should, therefore, be affirmed.
All concur.
Judgment affirmed.