Carter v. Hodge

It is conceded by both parties that the second undertaking, by reason of the failure of the sureties therein to justify, became inoperative for any purpose, and such undoubtedly is the law. Manning v. Gould, 90 N. Y. 476 . When defendant appealed from the-order denying its motion for a new trial, execution had issued upon, the judgment. It was not essential to a review of the order that any security should be given. • Code Civil Proc. § 1351. But it was-essential, in order to secure a stay of execution, that an undertaking be given. • This was undoubtedly in the mind of the attorney when he caused to be executed the undertaking, and filed and served the-same, with his notice of appeal, as his object then was to procure a stay. The section of the Code above cited provides that a court or a judge thereof may make an order directing a stay, upon such terms, as to security or otherwise, as justice requires. When the undertaking was executed there was no order granting a stay, and none- which prescribed what the security should be, if a stay should be granted. Consequently, in the sense that it was in pursuance cf no order made by a court or judge, it was not given in pursuance of any-statute, but was the voluntary act of the party. Had it so remained, it would encounter little trouble. It was executed, however, for a purpose, and that purpose was to make it a basis for a stay of proceedings on the judgment, pending the appeal, and it was-in pursuance of such purpose that it was presented to the county judge as a basis for a stay. The county judge possessed the authority to make the order prescribed in section 1351, (Code Civil Proc. § 241,) and when he made the order granting the stay it was made to appear that this undertaking was given for the purpose of" protecting, as it did in fact protect, the rights of plaintiff under the judgment. As the county judge had the authority to prescribe - what security should be given before granting the stay, he also had authority to pass upon and adopt the security presented as he did; and when that was done this undertaking became as though executed in pursuance of an order made by the county judge upon an application for a stay, and, as such, was given in pursuance of the statute authorizing such security. It did in fact form the basis of" staying all proceedings under the judgment for a period of 10 days.. Having accomplished its object, does liability attach? It was. held in Wing v. Rogers, 138 N. Y. 361 , 34 N. E. 194 , that liability was to be determined upon the efficacy of the undertaking to-accomplish the result contemplated when the undertaking was given.. This seems to be authoritative of the question presented. I am. also of opinion that this undertaking is good treated as a common-law agreement. It produced an order staying plaintiff’s proceedings upon the judgment, and consequently was founded upon a good consideration. Goodwin v. Bunzl, 102 N. Y. 224 , 6 N. E. 399 ; Wing v. Rogers, supra. Besides, it was under seal, which imports a consideration. Code Civil Proc. § 840. Ho evidence was offered to overcome this presumption, and it must be treated as conclusive-here. Best v. Shiel, 79 N. Y. 15 . The terms of the undertaking • constitute an agreement upon the part of the sureties to pay the sum directed to be paid by the judgment if the order appealed from was.

affirmed. When the order was affirmed, its effect was to make operative the right to enforce the judgment, and it was that judgment which the sureties agreed to pay, and is clearly embraced within the terms of the undertaking. The last undertaking did not have the effect of superseding the prior one. The failure of the sureties to justify left this undertaking as though it had not been given, but there was nothing in the order made upon the motion for a stay which affected the prior undertaking. That order simply re-' quired security which should be deemed satisfactory, the parties had the right thereunder to accept the undertaking already in existence, and it seems that this is what they did, as, the second undertaking failing, no attempt was made to enforce the judgment until the .affirmance of the order. The Code (section 1351) contemplates that there may be more than one order for security made, but it does not provide that, where one undertaking has performed its office, it shall cease of effect because another is ordered executed. If the undertaking performs its office and accomplishes the purpose for which it was given, then liability attaches according to its terms, and it is not necessary that it should operate during the entire period cf the appeal. As we have already seen, this undertaking was effective, and accomplished the purposes intended. Liability •consequently attached, and plaintiff now becomes entitled to enforce it. It follows that the judgment appealed from should be reversed, and a new trial ordered, costs to plaintiff to abide event..