Vail v. Reynolds — 21 N.Y. St. Rep. 869

Majority

p. 869

Elizabeth D. Vail, v. William M. Reynolds.^[1]

(Supreme Court, General Term, First Department,

Filed January 28, 1889.)

Headnote

Undertaking on appeal—When will not be set aside,

That the sureties to an undertaking did not know what they were signing when they executed it, or were under an erroneous belief as to the extent of their liability created thereby, are no grounds for setting the undertaking aside.

Appeal from order of the special term, denying motion to cancel and rescind an undertaking on appeal to the court of appeals.

W. B. Hornblower, for app’lt; J. A. Beady, lor resp’t.

Although the facts disclosed upon this application appear to present a case of great hardship to the sureties, who executed the undertaking on appeal herein, this affords no reason for taking from the respondents the security upon which they received the undertaking on appeal, which stayed their proceedings upon the judgments appealed from. If such security is to be set aside upon the ground that the sureties did not know what they were signing when they executed the undertaking, or that they were under an erroneous belief as to the extent of the liability created thereby, induced by their own agents or attorneys, or by the agents or attorneys of the judgment-debtor, having taken no pains themselves to ascertain the extent of their liability, by the slightest examination of the instrument which they are to execute, then no judgment-creditor can ever be certain that his judgment is secured, although his proceedings are stayed by an undertaking in due form and executed by responsible sureties, because his security may be taken away from him by proof of occur

p. 870

rences which took place when he was not present, in which he took no part, and which it is impossible for him to disprove even if false.

The learned justice who heard this motion in the court below, in the careful opinion he has written, has met all the questions raised on this appeal; and we see no reason to differ from the conclusions arrived at by him.

The order appealed from should be affirmed, with ten dollars costs and disbursements, but as there may be some doubt as to the right of the sureties to appeal to the court of appeals from the order made by this court, such affirmance should be without prejudice to the bringing of an action to set aside such undertaking.

Daniels and Bartlett, JJ., concur.