Clason v. Kehoe — 63 N.Y.S. 300

Majority

p. 300

CLASON v. KEHOE et al.

(Supreme Court, Appellate Division, Second Department.

March 20, 1900.)

Headnote

Appeal Bond — Sureties—Action.

In an action on an undertaking on appeal from a judgment for plaintiff in ejectment, conditioned for the payment of all costs and damages which might he awarded against the appellant, and also, if the judgment should be affirmed, for the payment of the value of the use and occupation of the premises, where a judgment was rendered against appellant, and notice thereof was duly served on the sureties on the undertaking before action thereon, as required by Code Civ. Proc. § 1309, a judgment against the sureties for the use and occupation of the premises during the pendency of the appeal should be affirmed.

Appeal from trial term, New York county.

Action by Josephine F. Clason against John Kehoe and James M. Griggs, as sureties on an appeal bond. From a judgment for plaintiff, defendants appeal.

Affirmed.

Argued before GOODRICH, P. J., and BARTLETT, HATCH, WOODWARD, and HIRSCHBERG, JJ.

Isaac N. Miller, for appellants.

George W. Stephens, for respondent.

The learned trial court aptly says, "The question of the liability of the defendants, and the extent of such liability, has been formally determined by the late general term of this court, when the case was before it on exceptions taken on a former trial of the action (see Clason v. Kehoe, 87 Hun, 368 , 34 N. Y. Supp. 431 );” and we are of opinion that the judgment appealed from should be affirmed. There can be no reasonable doubt that the trial court was acting within its discretionary powers, under the provisions of section 723 of the Code of Civil Procedure, in amending the complaint at the opening of the trial to meet the objection to its sufficiency. Ziegler v. Trenkman, 31 App. Div. 306 , 52 N. Y. Supp. 613 . This being done, and proof being introduced showing that a copy of the judgment of the general term, with notice of the entry thereof, was duly served upon the defendants’ attorney, in conformity with the requirements of section 1309 of the Code of Civil Procedure, before the commencement of the action, we are unable to find in the appellants’ brief any reason in law why the judgment for the use and occupation of the premises during the pendency of the appeal from the circuit court to the general term should not be affirmed.

The judgment appealed from should be affirmed, with costs. All concur.