Robert v. Donnell — 1 Abb. Pr. 4

Majority

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ROBERT against DONNELL.

Court of Appeals ;

March Term, 1865.

Headnote

Marine Court of Hew York.—Undertaking on Appeal.Construction of Statute.

The Act of 1853, (Chap. 617, § 5)—directing the mode of appeal to the general term of the Marine Court,—makes sections 348 and 335 of the Code of Procedure applicable to appeals in that Court.

On an appeal from a single Judge \>f the Marine Court to the general term of that Court, if a stay of proceedings is wanted, security must be given-as on a similar appeal in one of the Superior Courts, and an undertaking given for that purpose is valid.

Where an appeal has been properly taken, in the Marine Court, from the decision of a single Judge to the general term, no single Judge of the Court has the power to dismiss the appeal.

Appeal from the General Term of tjie Rew York Common Pleas affirming an order- dismissing the plaintiff’s complaint.

The action was brought by Thomas Robert against James Donnell and William Good. The plaintiff had previously recovered a judgment in the Marine Court of the City of Rew York for $489 70, against one Ezekiel Donnell, who appealed to the General Term of the Marine Court, where the judgment was affirmed. The notice of appeal in that former suit was served on the 81st of December, 1855, and on the same day an undertaking was executed by the defendants in the present action for the amount of the judgment, &c., on which undertaking this action was brought in the Court of Common Pleas. Subsequently, on motion of the plaintiffs in the suit in the Marine Court, the appeal was dismissed by a single Judge. This latter order was afterwards vacated by the same Judge.

On the trial of the present action, the plaintiff’s counsel offered in evidence an order made by the Justice' who tried the cause in the Marine Court requiring the defendant to give security, or in default thereof that the stay of proceedings be

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vacated. This was objected to and ruled out by the Court, which ruling was excepted to by the plaintiff.

The plaintiff having rested, the defendants moved for a dismissal of the complaint on the grounds—1. That the undertaking was void as being without consideration, and as not authorized by any statute; 2. That the appeal had been dismissed by one of the Judges, and that, therefore, no cause of action was proved.

The Court then ordered that the complaint be dismissed, to which the plaintiff excepted, and appealed from the decision to the General Term ; the decision of that Court is reported in 10 Abbotts Practice Reports, 454. The General Term affirmed the order, and the plaintiff appealed to the Court of Appeals.

Henry Brewster, for the appellant.

I. This undertaking is authorized by the Statute, and binding within all the cases.

By the act of 1853, § 5, of chap. 617, p. 1166, it is, among other things, enacted in relation to the Marine Court, as follows:

“ An appeal may be taken upon the same from a judgment entered by the direction of a single Justice of the said Court to the Justices thereof, at a General Term, in the same manner and with the like effect, as appeals in the Supreme Court, from the decision of a single Judge to the General Term.”

Thus both as to the manner and. effect, the appeals resemble appeals in the Supreme Court. The statute is very concise.

It neither fixes the time for appeal, notice, manner of service, or the proceedings of the Appellate Court, the right to a stay, or the. terms of staying proceedings, or the matter of security ; save by a reference to appeals in the Supreme Court. For these we must look first to the Code, § 348. That section refers, as to security, to the provisions in relation to the appeals to the Court of Appeals; for that we refer to § 355. That is as to the effect. But the hearing must be in the manner mentioned in chap. III., §§ 34-4 to 347. Then §§ 327, 330, 332 of the Code apply to the appeals mentioned in § 348; and, therefore, to appeals in the Marine Court. Nor are we entirely without

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authority on this point. The People v. Clerk of the Marine Court, 3 Abbotts’ Pr. Pep., 309.

Judge Mitchell, giving the opinion of the Court, says of this statute : “ The manner relates to the mode of effecting an appeal, the notice and security to he given; the effect relates to the consequences produced by the appeal, as under what circumstances it shall operate to stay proceedings.”

II. If this intention is not plain on the face of the statute, it is there by a fair construction.

Analogous statutes aid in arriving at the intention. (Dwarris on Stat., 690.) The meaning is to be gathered ' from the occasion of the law. (Id. 693-4.) The mischief here to be remedied is with the enlarged jurisdiction, the greater injury from erroneous judgments. The object is to give .facility for a review before three Judges as a remedy for any haste, prejudice, or mistake of one Justice, and to furnish two appeals, as giving a reasonable assurance against unjust judgments. (See Report of Commissioners of Code, pp. 22, 23.) Intent may be ascertained by comparison of one law with other laws on the same subject. They are compared because framed on one system. (Id. 699.)

TIT. When a new statute gives an action in a new case upon a former statute, everything annexed by the first is given. (Id. 700.) This statute refers to appeals in Supreme Court, and in giving a new appeal to be taken in the same manner and with like effect, it carries all things annexed to such previous appeal. The object of law is the attaiñment of justice. (Id. 727-755.) Statutes in pari materia are construed together. (9 Cowen, 437; 5 Hill., 221 .) Likewise, and in like manner, are held to couple the previous branch of the statute by reference.

The question of a stay of proceedings pending the appeal is very important. Appeals by all laws in all countries, with few exceptions, stay proceedings.

But to prevent collecting money security has usually been required.

IY. The appeal was pending, and the affirmance good and binding.

The order of Justice McCarthy, so far as it purported to dismiss the appeal, was a nullity.

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The appellate Court only, can dismiss an appeal. (1 Whittaker Pr., 189 ; Fort v. Bard, 1 Comst., 43; Id., 126, 228, 429, 429, 430, 606; Barnum v. Seneca Co. Bank, 6 How. Pr., 82 ; Harris v. Clark, 10 How. Pr., 419 -20.) The Judge had power to revoke the order—at all events the Marine Court wore proper judges of the regularity of the proceedings in that Court, and they held the appeal pending and affirmed the judgment. (Barker v. Binninger, 4 Kern., 270; The People v. Gale, 16 How. Pr., 199 ; Griswold v. Sedgwick, 1 Wend., 126 ; Beynolds v. Corp, 3 Caines, 267.) There is no time within which an appeal must be brought on. Either party may-notice it and. get it disposed of; but until that is done it is pending. The liability of the sureties continues through all the proceedings. Suppose a judgment reversed by default. The reversal discharges the sureties.; but if the reversal is set aside and default opened, surely the undertaking remains good. Delay does not affect the surety, where the default is non-payment of money. (Daniels v. Patterson, 3 Comst., 47 ; Robinson v. Plimpton, 25 N. Y. Rep., 484 ; and cases there cited. That the sureties were not entitled to notice, see Blue v. Stout, 3 Cowen, 354; Burrall v. Vanderbilt, 6 Abbotts' Pr., 70 ; 1 Bosw., 637 .)

Moses Ely, for respondents.

I. The instrument in suit expressed no consideration on its face, and it was not pretended at the trial that any consideration was ever given or .received therefor, or even that it was ever delivered, except as an undertaking to stay proceedings on. a judgment, pending an appeal therefrom. Unless, therefore, it operated to stay proceedings on a judgment described in it, it was nudum pactum.

II. The instrument, treated as intended to be an undertaking under the Code, to stay proceedings on a judgment, pending an appeal therefrom, did not operate to stay proceedings on that judgment.

1st. Because it was not accompanied by the affidavit required by Sec. 341 of the Code. 2d. Because its delivery, as such an undertaking, was not complete. Service of a copy on the adverse party, with notice of appeal, was essential to such

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delivery. (Code, Sec. 340.) Up to the time of making such service, the appellant, (notwithstanding the filing of the original undertaking,) gives no perfect expression of his choice of a stay, and is not entitled to. it. In this case there is no evidence that he ever served a copy of this paper. 3. The evidence fails to disclose when the original was filed. To show a consideration, by reason of its having operated as a stay of proceedings, it should have been proved affirmatively that it was filed, at least some time, before the appeal was terminated.

III. The statutes providing for stays of proceedings, by undertaking, do not relate to appeals of the General Term of the Marine Court. Such appeals are only authorized to be taken “ in the same manner, and with the like effect as appeals to the Supreme Court from the'decision of a single Judge to the General Term,” (Laws of 1853, Ch. 617, § 5,) in which the undertaking to stay proceedings is merely collateral to the appeal, and in no sense essential to its validity, or as part of its machinery. (Kitching v. Diehl, 40 Barb., 433 .) When the instrument involved in this case was given, the only appeals to which an undertaking was essential were those to the Court of Appeals. (Code, Sec. 334.)

IY. The appeal in this case having been dismissed, the sureties were, at the moment of dismissal, released ; (Drummond v. Husson, 4 Kernan, 60,) and it is absurd to claim that the vacation of the order effecting the release, on motion of the party secured, revived the liabilities of the sureties.

Y. Though the order of dismissal might not have been fraily effectual, as between the actual parties, .to the appeal, because of having been made at Special instead of at General Term of the Court, it discharged the sureties. 1st. It was made on application of the party secured. 2nd. It betrayed nothing on its face to show irregularity, and was filed and made part of the records in the suit by the party who procured it, and so remained for the space of more than eight months, during which, execution was probably issued, and the remedy under the judgment exhausted against the principal. 3rd. Thus making it a part of .such record was notice to all (including these sureties,) that the appeal was actually dismissed, and the sureties discharged; and (as against the sureties, who were strangers to the suit, and between whom and their prin

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cipal the law presumed equities,) estopped the party who got the order, and gave the notice, from ever after denying the validity of the discharge. 4th. To this day, as against these sureties, the record of the Marine Court is “ appeal dismissed,” and not “judgment affirmed,” for no notice of the application to set aside the order of dismissal was ever served on the sureties, nor were they in any way parties to the proceedings to set aside such order. 5th. The proceedings to set aside the order of dismissal were a recognition of the fact of actual dismissal; and having been made part of the records of the Court effected new notice and additional estoppel.

YI. So long as the record of the Court stood “ appeal dismissed,” with nothing on the face of the record to impeach it, the plaintiff was in a position, by his own volition, in which he could not proceed against the principal; and was necessarily giving him time without consent of the sureties;

This was an action upon an undertaking made and executed by the defendants to the plaintiff, bearing date December 31, 1855.

It recites that, on the 14th day of December of that year, in the Marine Court of the City of Mew York, the above-named plaintiff had recovered a judgment in that Court- against the appellant therein named, for four hundred and eighty-nine dollars, and seventy cents, damages and costs; and that the said appellant, feeling aggrieved thereby, intends to appeal therefrom to the General Term of said Court. Thereupon the said defendants, pursuant to the statute in such case made and provided, undertook that the appellant would pay all costs and damages which might be awarded against him on said appeal, not exceeding the sum of two hundred and fifty dollars, and did also undertake that, if such judgment ajrpealed from or any part thereof be affirmed, the said appellant would pay the amqunt directed to be paid by the said judgment, or the part of the amount as to which said judgment should be affirmed, if it should be affirmed only in part, and all damages which should be awarded against said appellant. The notice of appeal and undertaking were filed with the Clerk of the Marine Court, and a copy of both served on the plaintiff’s attorney on the 31st day of December, 1855.

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The plaintiff’s counsel offered in evidence an order made by the Justice of that Court who tried the action, dated December 28, 1855, in these words: *• Thomas Robert v. Ezekiel Donnell. On affidavit of the plaintiff, and on order to show cause, after hearing the respective parties, ordered that the defendant give security to pay the judgment m this action by or before twelve o’clock on the 31st instant, and serve notice that the security is given, with copy of the undertaking; the sufficiency of the sureties to be proved to the satisfaction of one of the Justices of.this Court; and in default of the giving of such security, the stay of proceedings in this action, made in order of December 21, 1855, is from the time above stated vacated.” The introduction of this order was objected to by the defendant’s counsel, and the same was excluded, and the plaintiff excepted. On the 26th day of February, 1857, at a General Term of the Marine Court, the judgment appealed from was in all things affirmed. On the 10th of May, 1856, one of the Justices of said Marine Court, sitting alone, made an order that said appeal be dismissed, with costs, and that the stay of proceedings be 'vacated, which order he subsequently vacated on the 21st of February, 1857, and directed that the appeal be restored, the same as if the said order had not been made. The action was tried in the Mew York Common Pleas, and a motion was made by the defendant’s counsel to nonsuit the plaintiff or dismiss his complaiht, on the following grounds :

First. That the undertaking was void, it being without consideration, and as not authorized by any statute.

Second. On the ground that the appeal had been dismissed by Justice McCarthy, and that, therefore, no cause of action was proved.

The Court sustained the motion, and ordered the complaint to be dismissed, to which decision and 'ruling, the plaintiff’s counsel excepted. Judgment was affirmed at General Term.

The undertaking in this action was given upon an appeal taken from a judgment rendered by a single Justice of the Marine Court to the General Term of such Court, and such an appeal was distinctly authorized by the provisions of section 5 of an Act in relation to the Marine Court, passed July 1,1853 (Laws of 1853, chapter 617,) which section declares that “ an appeal may be taken from a judgment entered by a

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single Justice of the said Court to the Justices thereof at a General Term, in the same manner; and with the like effect as appeals in the Supreme Court from the decision of a single Judge to the General Term.” Upon the proper construction of this provision, the validity of the undertaking and the plaintiff’s right of recovery depend. The Code indicates and prescribes the manner of appeal from the Special to the General Term of the Supreme Court and the effect of such appeals, and we must look at these provisions to ascertain the meaning and intent of the Legislature in making them applicable to appeals in the Marine Court. Section 327 of the Code declares that an appeal must be made by the service of a notice in writing on the adverse party and on the clerk with whom the judgment or order appealed from" is entered, stating the appeal to be from the same, or to some specified part thereof. Section 332 requires the appeal to be taken within thirty days after written notice of the judgment or order shall have been given to the party appealing. Sections 329 and 330 (declare the effects of the appeal as to. what the appellant may do upon such appeal. Nothing has been said thus as to any security or stay of proceedings upon any appeal, and if nothing more had been provided for, the party appealing would in most cases have derived little if any benefit from his appeal. The opposite party would have been at liberty to enforce his judgment, and the principal benefijts anticipated from appeals, according to judicial observation, that of delay, would have been entirely frustrated. The 348th section of the - Code enacts that no appeal from the judgment of a single Judge in the Supreme, Superior Court of New York, or Court of Common Pleas of said city, shall operate as a stay of proceedings, unless security be given as upon an appeal to the Court of Appeals, as required by section 335 of the Code. A reference to that section shows that if the appeal he from a judgment directing the payment of money, it shall not stay the execution of the judgment unless a written undertaking be executed on the part of the appellafit by at least two sureties, to the effect that if the judgment appealed from, or any part thereof, be affirmed, the appellant, will pay the amount directed to be paid by the judgment, or the part of such amount as to which the judgment shall be affirmed, if it be affirmed only in part, and all dama

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ges which shall he awarded against the appellant upon the appeal. It will be seen upon the comparison df the provisions of this section, with the undertaking upon which this action is brought, that it conforms in all respects with the directions of this section.

The only question remaining is, whether these sections of the Code, in reference to appeals in the Supreme Court have been made applicable to the appeals authorized to the Marine Court. The broad language of the Act of 1853 would seem to have been adequate to remove all doubt or questions upon this subject. The appeals authorized were to be taken in the same manner and with the like effect as appeals in the Supreme Court. It is manifest, the Legislature intended to confer upon the party appealing all the benefits and advantages which were given to the party appealing in the Supreme Court. His appeal was to be taken in the same manner. That is, when it was simply an appeal, and no stay desired by the service of the notices required, and when a stay was wished for, then, in addition, the execution and filing and service of a.copy of the required undertaking. When these things be done, or cither of them, then the appeal was to have the like effect as if the same had been taken in the Supreme Court. But we are not without authority on this point, this Court having passed upon this question, in the case of the People v. Clerk of Marine Court, reported in 3 Abbotts’ Pr., 309. Judge Mitchell, in the opinion of the Court delivered in this case, says : “ The manner relates to the mode of proceeding in effecting an appeal, the notice and security to be given ; the effect relates to the consequences produced by the appeal, as under what circumstances it shall operate to stay proceedings. ‘ Effect ’ is an appropriate word to describe a result that follows after the thing previously spoken of (the appeal) is completed, and would be quite inappropriate if used to define the cases in which such tiring might be done.”

The undertaking in suit was fully authorized by law, and is in due form, and the defendants’ liability'upon it cannot be questioned. That liability was not discharged by the order made by a single Justice of the Marine Court, dismissing the appeal. After the appeal was perfected, the cause was pend

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ing before the appellate tribunal, and it, only, was authorized to entertain a motion for a dismissal.

The Justice properly vacated his own order, dismissing the appeal as unauthorized and of no effect.

The order made, requiring the security to be given, should have been admitted in evidence as part of the records of the Marine Court, and as a proceeding in the action. It was not, however, material, and wpuld not of itself afford sufficient ground for a reversal.

■ But for the reasons stated, the judgment should be reversed, and a new trial ordered, costs to abide the event.

At the close of plaintiff’s" case the defendants’ counsel moved.for a nonsuit, on the following grounds:

First. That the undertaking was void as being without consideration, and as not authorized by any statute.

Second. That the appeal had been dismissed by Justice McCarthy, and that, therefore, no cause of action was proved.

The Court granted the motion, and dismissed the complaint, and plaintiff’s counsel duly excepted. Several technical questions were raised by the respondents’ points, not suggested at the trial, and they are not to be considered here.

Justice McCarthy had no power, sitting alone as Judge, to dismiss the appeal. Ilis order to that effect was inoperative, and might have been disregarded.

It was properly■ vacated by himself at a subsequent period. The important question of the case is, whether, upon an appeal from a judgment entered by the direction of a single Justice of the Marine Court to the Justices thereof at a General Term,, security may be given by the appellant, which will operate as a stay of proceedings, according to the provisions of the Code,

This qxiestion depends upon the construction to be given to the fifth section, chapter 617 of the Act of 1853 (Sess. Laws, 1853, page 1166,) which is in these words:

“ An appeal may be taken upon the same from a judgment entered by a single Justice of said Court to the Justices thereof at General Term, in the same manner and with the like effect as appeals in the Supreme Court from the decision of a single Judge to the General Term;”

Section 348 of the Code of Procedure authorizes the appeal

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to the Supreme Court, referred 'to iu the foregoing provisions, and declares that such an appeal does not stay the proceedings unless security be given as upon an appeal to the Court of Appeals, and such security be renewed as in cases required by section 335 on motion to the Court at Special Term, or, unless the Court or Judge thereof so order, which order may be made upon such security or otherwise, as may be. just, such security not to exceed the amount required on an appeal to the Court of Appeals.

The manner of making the appeal is prescribed by section 827. The time within which it is to be done by section 332, and sections 329 and 330, declare the power, of the appellate Court, in reviewing the judgment, and,any intermediate order involving the merits and affecting the judgment.

The principal effect of the appeal taken in the manner indicated, ip undoubtedly to bring the judgment for review before the appellate tribunal, where it may be reversed, affirmed or modified ; but there is another effect which flows from the appeal, to wit: a stay of all proceedings on the'judgment appealed from, provided the appellant complies with the requirements by giving the security or obtaining the special order which makes that effect operative. .

This latter effect of an appeal is optional with the appellant, but when he chooses to comply with the requirements that produce it, the stay of proceedings in the Court below is as much an effect of the appeal as is the bringing, up of the judgment for review. * ■

In using the general language of the section relating to appeals in the Marine Court, above quoted, the Legislature intended to adopt the practice, oh the subject of such appeals in the Supreme Court, as laid down in the Code witli all its concomitants and incidents. It was not thought necessary to repeat the provisions of the Code, but the declaration, that the appeal should he taken in the same manner and with the like effect as appeals in the Supreme Court from the decisions ■of a single Judge to the General Term, was designed to be equivalent to such a repetition. Hence, I think quite clear that on ah appeal, in the Marine Court, the appellant is at liberty to stay all proceedings, on the judgment appealed from by giving security upon an appeal to the Court of Appeals.

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In The People v. Clerk of the Marine Court, ( 5 Abb. Pr., 320 ,) this Court incidentally considered this question, though it was no.t directly involved. Mitchell, J., said: “ The manner relates to the mode of proceeding in effecting an appeal, the notice and security to be given; the effect relates to the consequences produced by the appeal, as under what circumstances it shall operate as a stay of proceedings.”

But, without considering the subject further, I think the Court below erred in not adopting the dissenting opinion of Brady, J., as a correct exposition of the law on this point. It follows that the undertaking, on which this action is brought, was authorized by the statute, and, if properly executed, operated as a stay, and, therefore, was based upon sufficient legal consideration.

The judgment should be reversed and a new trial granted, with costs to abide event.