O'Sullivan v. Connors

Headnote

Undertaking on appeal — power of the court to amend it on a motion made by one of the sureties.

Appeal from an order made at a Special Term, allowing an undertaking given in this action to be amended.

In this proceeding, brought to foreclose a mechanic’s lien, the defendant appealed to the Court of Appeals from a decision of the General Term of this court, and executed and filed an undertaking in. the following form:

UNDERTAKING ON APPEAL PROM AN ORDER WITH STAY.

Supreme Court.

JOHN O. SULLIVAN, Respt. against THOMAS CONNORS, Applt.

Whereas on the sixth day of January, 1879, a judgment ■oourfr

naade-aa- orJer-hereia of tlie General Term of the Supreme Court ■of the 2d Department, was entered in the office of the Clerk of Dutchess County, affirming the judgment entered herein, upon the report of Referee in this action, wherein he found for the plaintiff, ■John 0. Sullivan, and against Thomas Connors, defendant.

And the said Thomas Connors feeling aggrieved thereby, intends to appeal therefrom to the Court of Appeals, andr-tko eearfe-ítavingmade-aa-erder-dhat-a-ll the proceedfegs-eB-t-he-part -of-t-lie-

-wlthr«ffiSeie&t--ouretíes-ema-

Now therefore, we, Alexander 0. Mackay, of the Village of Mat.teawan, Dutchess County, N. Y., by occupation a Fuller, and Alonzo Cole of the Village of "VVappingers Falls, Dutchess County, N. Y., by occupation a Blacksmith, do hereby jointly and severally undertake that the appellant will pay all costs and damages which may be awarded against him on said appeal not exceeding five hun■dred dollars, and do also undertake that if the e^der judgment appealed from or any part thereof is affirmed or the appeal is dismissed, the appellant will pay the sum recovered, or directed to be paid by the affirmance, or the part thereof as to which it is affirmed and all damages which shall be awarded against the appellant upon the appeal by the determination of the Appellate Court.

Dated October 14th, 1879.

ALEXANDER C. MACKEY, [l. s.]

ALONZO COLE. [l- s.]

Upon the application of the sureties the provision making them liable for the amount of the recovery was stricken out on the ground that it was inserted by mistake, and that it was intended that they should be liable only for the costs of appeal, no stay of proceedings being desired.

The court, at General Term, said: “"We have no doubt of the power of the court to allow the amendment granted in this case. The undertaking is a proceeding in the action, and the power of amending it in furtherance of justice is expressly granted by sections 721 and 730 of the Code of Civil Pro

•cedure. Such power also existed at common law (Graham Pr., 652), and that power was preserved by section 469 of the Code of Procedure. The motion to amend was properly made in this court. (Code Civ. Pro., § 722; Graham Pr., 667.) • The evidence shows very satisfactorily that the undertaking was not given for the purpose of staying proceedings pending the appeal. In the first place, the action was one to foreclose a mechanics lien. The undertaking is not in the form prescribed in order to obtain a stay pending an appeal from a judgment in such an action. (Code Civ. Pro., § 1331.) In the second place, it is proved that the attorney for the appellant struck from the printed blank the usual recital relating to a stay, but omitted to strike therefrom the operative clause requisite to effect a stay, merely by inadvertence and mistake. It would be a reproach to the law if such a mistake could not be corrected by amendment in the usual manner, namely, by motion.”

Order affirmed, with $10 costs and disbursements.