Hoag v. Prime

Headnote

Appeal—Liability on Undertaking.

Code Civil Froo. N. T. § 1331, which provides that an undertaking on an appeal from a judgment directing a foreclosure and sale shall be to the effect that, if the judgment shall be affirmed, the appellant will pay any deficiency occurring at the sale, “ and the costs, and all expenses chargeable against the proceeds of sale, not exceeding a specified sum, fixed by the judge of the court below, ” limits the total liability of the sureties in the undertaking to the amount so specified.

Appeal from special term, Clinton county.

Action by Richard Hoag against Henry M. Prime and others, on an undertaking given by defendants as sureties for one Hatch and others, who appealed from a judgment in a foreclosure action rendered by the special term in favor of said Hoag. There was a judgment for plaintiff for $250, the sum specified in the undertaking. Code Civil Proc. N. T. § 1331, provides that an undertaking given on appeal from a judgment directing a foreclosure and sale of mortgaged land shall be to the effect that, if the judgment is affirmed, the appellant will pay any deficiency which may occur on the sale, with interest, “and the costs, and all expenses chargeable against the proceeds of the sale, not exceeding a specified sum, fixed by a judge of the court below.” Section 812 provides that a surety shall justify in a sum double the amount specified in the undertaking. Plaintiff argued that the limitation of the liability to the sum specified applied, not to the deficiency in the mortgage debt, but to the costs and expenses mentioned in the statute, orto the expenses alone, and that he should have judgment for the full amount of deficiency, w'hich was above $800, including such costs and expenses.