Langley v. Warner — 1 N.Y. 606

Majority

p. 606

Langley and Langley vs. Warner.

Headnote

To render an appeal effectual for any purpose, an undertaking to pay costs and damages, pursuant to the 283d section of the code of procedure, must be executed. An undertaking under the 284th section to pay the sum recovered in the court below and all damages awarded on the appeal, although necessary in order to stay proceedings in the cases mentioned in that section, will not sustain the appeal. .

The court cannot amend an undertaking without the consent of the sureties.

On the 27th of September last Langley and Langley, as plaintiffs, recovered a judgment against Warner in the superior court of the city of New-York for $185.19. On the 2oth of October following, Warner gave notice of an appeal, and an undertaking was executed in pursuance of the 281th section of the code of procedure ; but there was no such undertaking as is required by the 283d section: and on that ground,

J. Edwards, for the respondents, moved to dismiss the appeal.

A. Dean, for the appellant.

. To render an appeal effectual for any purpose, there must be an undertaking that the appellant will pay all costs and damages which may be awarded against him on the appeal, not exceeding two hundred and fifty dollars. (Code, § 283.) When the judgment is for the payment of money, and a stay of execution is desired, the sureties must go further! and undertake that the appellant will pay the amount of the judgment, so far as it shall be affirmed, and all damages which

p. 607

shall be awarded against the appellant on the appeal. (§ 284.) The undertaking in this case conforms to this section ; and as there is an agreement to pay “ all damages,” the word “ damages ” in the preceding section is fully satisfied, and something more. But there is no agreement to pay costs, as the 283d section’ requires; and without that, the appeal was not effectual for any purpose.

The appellant asks leave to amend the undertaking. If it had been a bond, and the obligors had applied, we should have had power to allow an amendment. (2 R. S. 556, § 34.) But the instrument is not a bond, and the sureties have not applied. The court cannot amend a contract without the consent of the parties to it. The 149th section of the code of procedure authorizes the court to amend pleadings and proceedings in certain specified cases; but I think it clear that this case is not among the number. Whether upon common law principles we could not allow a new undertaking to be filed nunc pro tunc, I do not think it necessary to inquire; for in my judgment a court of review ought not to encourage appeals, and no special reason is shown for allowing an amendment in this case. If delay is not the object, and the appellant really desires to obtain the judgment of this court, he can bring a new appeal.

Appeal dismissed.^[1]

(a) (a) The motions in this and the three following cases were made and decided in January, 1849.