Levi v. Dorn — 28 How. Pr. 217

Majority

p. 217

SUPREME COURT.

Isaac Levi agt. Julius Dorn, and another.

Headnote

Q?b.e sureties, in an undertaking on appeal from a judgment in an action against them on the undertaking, are estopped by the recitals in their undertaking from questioning the correctness of the amount of costs in the judgment appealed from.

Brooklyn General Term,

January, 1865.

Before Lott, Scrugham and Barnard, Justices.

On the 9th December, 1862, there was tried by a jury in the Kings county court, an action upon appeal from a justice, wherein Charles Frohue was plaintiff and appellant, and Isaac Levi was defendant and respondent. The jury on that day rendered a verdict in favor of respondent for $175.73 and costs. Thecostswere subsequently adjusted at $39.04, and on the 13th January, 1863, the judgment was entered in favor of respondent for $214.50, being entered by mistake for twenty-seven cents less than the true amount, which was $214.77. The plaintiff Frohue appealed to the general term from this judgment, and it was subsequently affirmed. Upon his appeal and to stay proceedings, he caused to be executed by defendants and filed an under

p. 218

taking, reciting in it that the judgment was recovered on the 18th December, 1862, in the Kings county court, by Levi respondent, against Frohue appellant, for $214.IT. This undertaking was filed on the 8 th January, 1863.

H. C. Close, for appellant.

Geo. Thompson, for respondent.

The sureties to the undertaking now claim two errors to discharge them. 1. The judgment is recited as being twenty-seven cents more than the amount for which it is entered; and, 2. That the judgment was not in fact entered until after the undertaking was filed:

The first of these objections is not -in fact true, the verdict is given, and the costs as taxed are given ; the footing up of the two sums is only erroneous, but the defendants are estopped by their recitals in the undertaking. They executed, acknowledged and filed this paper to. stay proceedings on appeal. The verdict had been rendered and the costs taxed. They put in the recitals. They are bound by their paper as they made it. (Decker agt. Judson, 16 N. Y. R. 439; 22 How. Pr. R. 494.)