Concordia Savings & Aid Ass'n v. Read — 35 N.Y. St. Rep. 222

Majority

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The Concordia Savings & Aid Association, Resp’t, v. John J. P. Read et al., App’lts.^[1]

(Court of Appeals, Second Division,

Filed January 14, 1891.)

Headnote

Undertaking—Foreclosure—Code Civ. Pro., § 1331.

An undertaking on appeal to the general term from a judgment of fore

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closure, -which states that the sureties “ do hereby, pursuant to the statute, jointly and severally undertake,” etc., that appellant “will pay all costs and damages which may be awarded against her on said appeal not exceeding §500,” and on affirmance or dismissal “pay the sum recovered or directed to be paid by the judgment,” constitutes merely a valid common law agreement,and the words used are to be given their usual and ordinary legal signification and. not the force and effect of a statutory undertaking.

Appeal from .a judgment of the general term of the superior court of Buffalo entered January 27, 1888, on an order affirming a judgment o£ the trial court.

This action is brought to recover on an undertaking given on appeal to the general term from a judgment of foreclosure and sale in the usual form. The undertaking did not comply with the requirements of § 1331 of the Code of Civil Procedure. Aside from the clause relating to costs and damages, the obligation was in accordance with the provisions of § 1327. The undertaking was in words following :

“ W hereas, on the 27th day of January, 1879, in the Erie county court, the above named respondent, the Concordia Savings & Aid Association, recovered a judgment against the above named appellants, Emil Meier, Elizabeth A. S. Bead et al., for $518.30 damages and costs, and the said Elizabeth A. S. Bead feeling aggrieved thereby intends to appeal therefrom to the general term of the supreme court. Now, therefore, I, John J. P. Bead, doing business at No. 500 Washington street in the city of Buffalo, Erie county, N. Y., by occupation a merchant, and Fannie P. Cottle, of Little Falls, Herkimer county, N. Y., without occupation, do hereby pursuant to the statute, jointly and severally, undertake that the appellant will pay all costs and damages which may be awarded against her upon said appeal not exceeding $500, and do also undertake that if the judgment so appealed from, or any part thereof is affirmed, or said appeal is dismissed, the appellant will pay the sum recovered or directed to be paid by the judgment or the part, thereof as to which it shall be affirmed, and said Fannie P. Cottle hereby charges her separate estate with the payment thereof.

“Dated at Buffalo, N. Y., November 29, 1879.

“J. J. P. Bead,

“Fannie P. Cottle.”

Plaintiff’s attorneys accepted the undertaking and did not take proceedings to enforce the judgment pending the appeal. It resulted m an affirmance. In the meantime, the property was sold pursuant to a judgment of foreclosure and sale founded on a prior mortgage. After the entry of judgment on the order of affirmance and the giving of notice thereof to appellant’s attorneys, this action was commenced.

O. O. Cottle, for app’lts; Adelbert Moot, for resp’t.

An examination of the record in Goodwin v. Bunzl, 102 N. Y., 224 ; 1 N. Y. State Rep., 405, and a comparison of the facts disclosed by it with those now under review leads to the conclusion that „this case is controlled by it to an extent which requires the holding that the undertaking before us is a

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valid common law agreement. In that case, as in this, the undertaking contains the following recital: “ do hereby pursuant to statute in such case made and provided undertake "x" *' While the undertaking is valid and enforceable as an agreement it can only be enforced according to its terms and will not be given the force and effect of a statutory undertaking unless its provisions require it. This agreement provided -first that the appellant “ will pay all costs and damages which may be awarded .against her on said appeal not exceeding $500.” Costs were ■awarded against the appellant on such appeal in the sum of $119.72 and judgment therefor entered on the 9th day of June, 1884, and notice of the entry thereof duly given. Such sum with the interest thereon was, therefore, property recoverable in this action. It further provides as follows: “And do also undertake that if the judgment so appealed from or any part thereof is affirmed or said appeal is dismissed, the appellant will pay the sum recovered or directed to be paid by the judgment or the part thereof as to which it shall be affirmed.” If the undertaking given had been in the form provided by § 1381, plaintiff’s right to recover would not admit of question, but as it is to be treated ■simply as an agreement between the parties we are to give to the words used their usual and ordinary legal signification. They will not be extended by implication in aid of a party, who having it within his power to protect himself by requiring a statutory bond, elected to accept something else. It will be observed that if the construction so far given to it by the courts be well founded, the sureties absolutely obligate themselves to pay the amount adjudged to be due and secured by the mortgage upon affirmance. So that the plaintiff without exhausting its remedy against the property, even though it had been of sufficient value to realize the amount adjudged to be due, Could have recovered in full of the sureties while a statutory undertaking on appeal from a judgment in foreclosure only requires the payment of any deficiency which may occur upon the sale. The obligation is in the form provided by § 1327 of the Code of Civil Procedure; “ Will pay the sum recovered or directed to be paid by the judgment or order or the part thereof as to which it shall be. affirmed,” and is especially applicable to such class of judgments as that section refers to, to wit. : “A judgment for a sum of money or a judgment or order directing the payment of a sum of money.” It does not embrace judgments decreeing foreclosure, the delivery of possession of real property, assignment or delivery of a document, recovery of a chattel or directing the execution of a conveyance. Por such judgments §§ 1328, 1329, 1330, 1331 prescribe the undertaking necessary to be given and do not contain the language used in this agreement and which this court is urged to declare applicable for the purposes of a recovery on an undertaking to a situation presented and provided for by § 1331. It is conceded that this undertaking could not have operated to stay proceedings on the judgment. And while it does not follow that for such reason certain terms employed in the agreement between

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the parties may not be so construed as to create a liability equal to or greater than that provided by the section stating the conditions necessary to compel a stay of proceedings, still the examination given to the sections to which we have but briefly alluded is of aid to the court in that it develops that at the time of the making of this agreement the statutory use of the terms here employed did not include a case where a judgment directs the sale of a specific piece of property for the purpose of making plaintiff’s demand out of the avails thereof. And so far as it may be said to contribute towards showing the ordinary signification of the language under consideration it is in hostility to the plaintiff’s position. Again, it has been determined by this court that in a decree in foreclosure there is not a “ sum recovered or directed to be paid.”

Judge Danforth, speaking for this court in Barnard v. Onderdonk, 98 N. Y., 167 , said: “The action for foreclosure has re.sulted in a decree, but it is merely for the,purpose of enforcing the lien on the mortgage as by a special execution. It is not for the payment of any sum of money, nor can it be docketed. If, after sale, there should appear to be a deficiency, it may, when ■other steps have been taken, be made a personal judgment; until then it is inchoate. Such is its present condition. As it now stands no amount of money’ can be said ‘to be recovered by it,’ nor is it ‘ a final judgment or decree for a sum of money,’ nor does it direct ‘the payment of a sum of money.’ It is final so far as it directs ‘ the sale of the property mortgaged,’ and the application of the proceeds, § 1626, but beyond that all depends upon a contingency.” This agreement was given after decree made in a foreclosure action, and the situation presented, therefore, comes directly within the language employed by Judge Danforth. Thus, within the ordinary legal signification of the terms used as determined by judicial construction, the parties cannot be said to have agreed that the amount decreed to be paid out of the proceeds of the sale of certain real estate should be paid by the sureties in the event of affirmance, for no sum “was recovered or directed to be paid by the judgment.” The determination, that an undertaking executed, delivered and accepted, under the circumstances presented, is a valid agreement, while required by authority, nevertheless is in part supported by implication. Its effect should not also be extended by implication. In Goodwin v. Bunzl, supra, this question was not before the court. The judgment was in the alternative for delivery of property, or for damages, the amount thereof being determined and the issuing of execution therefor authorized.

The judgment should be reversed and a new trial granted, with costs to abide the event unless the plaintiff within thirty days stipulates to modify the judgment by deducting therefrom the sum of $518.30 with interest thereon from the 27th day of January, 1879, to September 20,1886, in which event the judgment as thus modified is affirmed, without costs of this court to either party.

All concur.