Goodwin v. Bunzl — 1 N.Y. St. Rep. 405

Majority

p. 405

Goodwin and others v. Bunzl and another.^[1]

(Court of Appeals,

Filed April 13, 1886.)

Headnote

Appeal—Undertaking—Replevin.

In an action for claim and delivery of personal property, the defendants gave an undertaking on appeal. The plaintiffs’ attorney, at first excepting to the sufficiency of the sureties, but at request of defendants' attorney, and upon his assurance that the sureties were responsible,- withdrew his exceptions, and took no proceedings until after the determination of the appeal. The undertaking was incorrect in form, being one under secti n 1327 of the Code of Civil Procedure, instead of section 1329. Held, that the undertaking was not illegal and was founded on a good consideration, and is enforceable accordi.-g to its terms, and binding on the sureties.

Appeal from judgment of general term New York superior court, affirming judgment for plaintiff entered on „ verdict of jury.

M. H. Begensberger, for appellants, James Bunzl and ano.

W. F. MacBae, for respondents, H. J. Goodwin and ano.

Under the Code, no security is required to perfect an appeal to the general term from a judgment. It is necessary only when the appellant desires a stay of proceedings pending the appeal. Code, § 1351. The giving of the undertaking in this case was therefore an idle ceremony, unless it was intended to secure this object. The attorneys on both sides treated the undertaking as appropriate and effectual for that purpose. It was signed and acknowledged by the sureties, was approved by a judge, and filed in the office of the clerk, and a copy was served on the plaintiffs’ attorneys, accompanied with a written notice by the defendants’ attorney. The plaintiffs’ attorney at first excepted to the sufficiency of the sureties, but afterwards,

p. 406

upon the request of the attorney for the defendants, and upon his assurance that the sureties were responsible, withdrew the objection, and consented to accept the undertaking, and they took no proceedings to enforce the judgment until after the determination of the appeal. The transaction was, in legal effect, a forbearance on the part of the plaintiffs, at the request of the defendants, to pursue their legal remedy against the defendants pending the appeal, in consideration of the undertaking. The undertaking was in the form prescribed by section 1327 of the Code for undertakings to stay execution on money judgments. It was not in the form of the statutory undertaking prescribed for undertakings to stay proceedings on an appeal from a judgment for the recovery of chattels. Code, § 1329. But the undertaking was not illegal. It was not taken colore officii (Cook v. Freudenthal 80 N. Y., 202 ), and it is founded on a good consideration. It should .be held, we think, to inure as a good common-law agreement, enforceable according to its terms. Decker v. Judson, 16 N. Y., 439 . This conclusion accords with the sense of justice, and is not precluded by the authorities. The case of Post v. Doremus ( 60 N. Y., 371 ), was put upon two grounds: First, that there was no consideration for the defendant’s promises; and, second, that the event upon which the liability depended had not happened. In this case there was ample consideration, and the liability of the sureties, according to the terms of the contract, was established by proof that the judgment was affirmed on the appeal as to two of the defendants (Seacord v. Morgan, 42 N. Y., 636 ), and that execution against them had been returned unsatisfied, and that the property had never been delivered to the plaintiffs.

The point that the subsequent proceedings on the new trial, in which judgment was found in favor of Wertheimer, discharged the defendants, is, we think, untenable.

The judgment should therefore be affirmed.

All concur, except Raparlo, J., absent.