Donovan v. Clark — 27 N.Y.S. 686

Majority

p. 686

DONOVAN v. CLARK.

(Supreme Court, General Term, First Department.

February 16, 1894.)

Headnote

Appeal Bond—Joint and Several Liability.

An undertaking on appeal recited that the obligors “did jointly and severally * * * undertake” to pay the costs and damages, “and did also

p. 687

undertake that if the judgment so appealed from, or any part thereof,_ is affirmed,” to pay such judgment. Held, that the undertaking was joint and several as to the payment of the judgment, as well as the damages and costs.

Action by Daniel H. Donovan against Margaret Clark to recover on an undertaking given on appeal. Defendant moves for a new trial on exceptions ordered to be heard at general term in the first Ínst8.nC6 T)finiP(i

Argued before VAN BRUNT, P. J., and O’BRIEN and FOLLETT, JJ.

John D. Kernan, for plaintiff.

L. Laflin Kellogg, for defendant.

This action was brought to recover upon an undertaking given on appeal pursuant to sections 1326, 1327, and 1334 of the Code of Civil Procedure. It is conceded that the undertaking to secure the costs was joint and several, but the question is whether that part of the undertaking given to secure the payment of the judgment was joint, or joint and several. In the part of the undertaking which relates to the payment of costs and damages, it is provided that the principals “do jointly and severally, pursuant to the statute in such case made and provided, undertake,” etc. And the clause relating to the payment of the judgment provides: “And do also undertake that, if the judgment so appealed from, or any part thereof, is affirmed,” etc. We think this undertaking is joint and several in both of its parts, and the words, “and do also undertake,” undoubtedly refer to the character of the obligation entered into by the sureties. This construction is enforced, not only from the position of the words quoted in the undertaking itself, but also' by the evident intent to give an undertaking pursuant to the statute, which required that such undertaking should be both joint and several; and the presumption must be indulged in that the parties intended to give such an undertaking as the statute requires. Again, the plea in abatement is not sufficient in law. It is not averred that the co-obligor is living, and within the jurisdiction of the court. Exceptions overruled, and judgment ordered on verdict, with costs.