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Denike v. Denike

61 A.D. 492 Court N.Y. App. Div. English

Delivered by Jenks, J. :

Contents

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p. 492
Abraham Denike, Respondent, v. Mary A. Denike, Appellant, Impleaded with Edward Gorman.

Headnote

Undertaking on a/ppeal—not joint and, severed as required by the Oode—it may be enforced against the sureties.
The provision of section 812 of the Code of Civil Procedure, that a bond or undertaking executed by two or more persons must be joint and severa, in form, was intended for the benefit of the obligee, and if the respondent on an appeal to the Court of Appeals chooses to accept an undertaking which is not joint and several in form, that fact is not available as a defense to the sureties in an action upon the undertaking, certainly where it is not shown that the principal did not secure the full benefit of the stay which depended upon the giving of the undertaking.
Appeal by the defendant, Mary A. Denike, from a judgment of the County Court of Kings county in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 5th day of March, 1901, upon the decision of the court.
H. J. Morris, for the appellant.
Bayhaél J. Moses, for the respondent.

This is an appeal by the defendant Denike from a judgment of the County Court of Kings county, in an action against her and her

p. 493
co-surety, Gorman, on an undertaking executed by them on an appeal of their principal to the Court of Appeals from a money judgment against him.

The defendant Gorman defaulted and' judgment was entered against both defendants. There is but a single question presented by the appeal. The undertaking was in the usual form, except that it did not provide that the defendants, “jointly and severally,” bound themselves. The defendant Denike by separate answer denied that the defendants had executed an undertaking “ pursuant to the statute in such case made and provided.” The contention of the appellant rests upon the fact that section 812 of the Code of Civil Procedure provides in such a case that the bond or undertaking must “ be joint and several in form.”

I am of opinion that the provision is for the benefit of the obligee, the plaintiff, and was doubtless enacted to protect him from the consequences like those in Davis v. Van Buren ( 72 N. Y. 587 ). If the plaintiff chose to accept the bond in that form, I think that the defendant cannot base a valid defense merely upon that fact. (See Hill v. Burke, 62 N. Y. 111 , 116; Code Civ. Proc. § 729.) It is not shown that the principal did not secure the full benefit of the stay which depended upon the giving of the undertaking, and, therefore, the principle enunciated in Wing v. Rogers ( 138 N. Y. 361 ), in Carter v. Hodge (150 id. 532), and in similar cases cited by the learned counsel for the appellant, does not apply. The co-surety is presumably alive and indeed was sued in this action.

In the absence of all evidence to the contrary it will be assumed that the obligation had full practical force and effect, and I think, therefore, the action may also be maintained under the authority of Concordia Savings & Aid Assn. v. Read ( 124 N. Y. 189 , 194); Goodwin v. Bunzl (102 id. 224 ). (See, too, Carter v. Hodge, supra, 538.)

The judgment must be affirmed, with costs.

All concurred.

Judgment of the County Court of Kings county affirmed, with costs,

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