Post v. Doremus — 8 N.Y. Sup. Ct. 521

Majority

p. 521

WILLIAM T. POST, Plaintiff, v. FLAVEL H. DOREMUS, Survivor of Theron S. Doremus.

Headnote

Undertaking on appeal—liability under Gode, § 334—extra allowance — costs of appeals, from what orders, secwred by the undertaking.

The plaintiff brought an action against one Hathom, which resulted in a verdict for the defendant. Plaintiff appealed to the General Term, where a new trial was granted. Upon an appeal from the order of the General Term, granting the new trial, the defendant and another executed an undertaking, which provided, 1st. For the payment of all costs and damages which might be awarded against the appellant on said appeal, not exceeding §500; 2d. For the amount directed to be paid if the judgment appealed from, or any part thereof, should be affirmed; and 3d. For the payment of all damages and costs which should be awarded against the appellant on said appeal. The Court of Appeals affirmed the order of the General Term, and ordered judgment absolute for the plaintiff.

Held,, that the first part of the undertaking restricted the amount, secured by it, to a sum certain, which is specified; that the second was entirely inapplicable to the order appealed from, and should be considered stricken out as surplusage ; that the third part was unrestricted in its terms, and, fairly interpreted, was

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broad and comprehensive enough to embrace all costs and damages which might, finally, be awarded against the appellant, and necessarily included the full amount of the judgment awarded by the Court of Appeals.

The undertaking required to be given by section 334 of the Code, does not of itself stay the proceedings in the court below; and the only way in which they can be stayed, after an order for a new trial has been made, is by a motion directly to the court for that purpose, where the proper terms can be imposed as to security.

As the action of the plaintiff in accepting the undertaking in suit instead of proceeding with the case, was for the benefit of the appellant, who was thereby relieved from the necessity of making a motion to the court, it was held, that this furnished a sufficient consideration to support the undertaking.

At the time of entering the judgment in the original action, an extra allowance was granted to the plaintiff. Held, that he was entitled to recover the same from defendant in this action.

At the same time that the appeal was taken from the order granting a new trial, appeals were taken from two other orders in the action. Held, that the costs of those appeals were not included in the undertaking.

Case submitted upon an agreed statement of facts.

The plaintiff brought an action in the Supreme Court against one Hathorn, impleaded with one Robertson, which resulted in a verdict for the defendant. A motion was made at Special Term for a new trial, which was denied, and, upon an appeal from the order to the General Term, it was reversed, and a new trial granted, with cost to abide the event. Hathorn appealed to the Court of Appeals, and filed a stipulation that if the order was affirmed, judgment absolute might be rendered against him, and, upon such appeal, filed an undertaking, which is as follows:

“IN" THE COURT OF APPEALS.

“Whereas, on the third Tuesday of November, 1867, in the Supreme Court, at the General Term of the sixth judicial district of the State of New York, an order was made reversing the order of the Special Term in this action (denying the plaintiff’s motion for a new trial), and granting the said respondent’s motion for a new trial.

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“ And the above-named appellant, feeling aggrieved thereby, intends to appeal therefrom to the Court of Appeals.

“ Now, therefore, we Theron J. Doremus, of No. 1 Erie Buildings, Reade street, in the city of New York, and F. H. Doremus, of No. 7 Erie Buildings, Reade street, in said city, do hereby, pursuant to the statute in such case made and provided, undertake that the said appellant will pay all costs and damages which may be awarded against him on said appeal,'not exceeding $500; and do also undertake that if the said judgment, so appealed from, or any part thereof, be affirmed or the appeal be dismissed, the said appellant will pay the amount directed to be paid by the said judgment, or the part of such amount as to which the said judgment shall be affirmed, if it be affirmed only in part, and all damages and costs which shall be awarded against said appellant on said appeal.

“ Dated December 3, 1867.

“THERON S. DOREMUS.

“ F. HARRY DOREMUS.”

To the said undertaking, was annexed an affidavit of each of the sureties, that he was a householder, and worth the sum of $1,000, and the same was duly acknowledged.

The Court of Appeals affirmed the order, and judgment absolute was ordered in pursuance of the stipulation, with costs. The proceedings were remitted to the Supreme Court, where the plaintiff’s damages were assessed, costs adjusted upon notice, and without objection, and judgment entered, on the 11th day of August, 1873, for $4,887.02, damages and costs. The plaintiff proposed to move for an extra allowance, and Hathorn’s attorney stipulated that it should be granted, and it was included in the costs.

During the litigation, two several orders were made at Special Term, in relation to matters of practice in the case, which were appealed from to the General Term by Hathorn, and, being affirmed, they were appealed from to the Court of Appeals, which appeals were heard at the same time as the appeal from the order granting a new trial, and the orders affirmed, with costs. The defendant, in the case submitted, was the survivor of the two sureties named in the undertaking.

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L). B. Hill, for the plaintiff,

cited Rogers v. Kneeland ( 10 Wend., 218 ); Wiser v. Blachly (1 John. Ch., 607) ; Farley v. McConnell ( 52 N. Y., 630 ); Ex parte Eastabrooks ( 5 Cow., 27 ); McMahon v. Allen ( 22 How., 193 ) ; Valton v. The Nat. Loan Fund Life As. ( 19 How., 515 ); Clark v. Brooks (2 Abb. [N. S.], 399); Tiers v. Carnahan ( 3 Abb., 69 ); Von Keller v. Schulting ( 45 How., 139 ); Beals v. Benjamin ( 29 How., 101 ).

(7. jfcf. Marsh, for the defendant,

cited Griswold v. Fowler ( 15 Abb., 368 , note); Thompson v. Blanchard ( 3 N. Y., 335 ); Halsey v. Flint ( 15 Abb. Pr., 367 ); Hall v. Cushing ( 9 Pick., 395 ); Pop penhusen v. Seeley ( 41 Barb., 450 ); S. C. (3 Keyes, 150) ; Onderdonk v. Emmons ( 9 Abb., 187 ).

The undertaking executed by the defendants, upon the appeal taken to the Court of Appeals, provided, first, for the payment of all costs and damages which might be awarded against the appellant on said appeal, not exceeding $500; second, for the the amount directed to be paid, if the judgment appealed from or any part thereof be affirmed, or the appeal be dismissed, or the part of such amount as to which the said judgment should be affirmed, if it be affirmed only in part; and third, to pay all damages and costs which shall be awarded against the appellant on said appeal. The first part restricts the amount to a sum certain, which is specified. The second provides for the payment of a judgment, or such part thereof as may be affirmed, when there was no judgment appealed from, and is entirely inapplicable to the order from which the appeal was taken. It may, I think, be regarded as redundant and superfluous, and considered stricken out as surplusage. The third part is unrestricted in its terms, and, fairly interpreted, includes all costs and damages arising to the plaintiff by reason of the appeal. This is a legitimate and rational construction from the terms and language of the undertaking, and I think, in judgment of law, is contained in it.^[4]

It may, I think, be considered either as ' a continuation of the first part, which extends the obligation beyond the $500 therein

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specified, or as an independent and distinct clause, which has precisely the same effect. In either point of view, it is, I think, broad and comprehensive enough, to embrace all costs and damages, which might finally be awarded against the appellant, which necessarily would include the full amount of the judgment awarded by the Court of Appeals. It is no objection to an undertaking, that the penalty is for more than the amount required,^[4] nor, in my opinion, that it is broader in its terms, than was actually necessary. Hence it cannot be urged that this instrument was too comprehensive, and, unless it was not embraced within some rule of law, it cannot, I think, be avoided.

It is objected, that it was for more than was required by section 334 of the Code, which limits such an undertaking to the costs of the appeal, not exceeding $500, and which is the only undertaking required upon such an appeal. It is true, that the first part of the undertaking embraces an appeal from an order, under this section, but it does not of itself stay the proceedings in the court below ; and the only way in which the proceedings in the court below can be stayed, after an order for a new trial has been made, -is by a motion directly to the court, for that purpose, where the proper terms can be imposed as to security, so as to protect the respondent against loss, if the Court of Appeals should have affirmed the order, or, as in this case, directed a judgment in his favor,^[3] The undertaking, therefore, under section 334, would not have stayed the plaintiff’s proceedings, and the plaintiff would have been authorized to disregard the appeal, and could have proceeded, under the order granting a new trial, the same as if no appeal had been' taken. Ho motion appears to have been made in the case, or any order specifying the terms on which a stay would be granted, but the bond was executed voluntarily, and perhaps for the very purpose of rendering any such motion unnecessary. It contained a provision, which, I think, covered all costs and damages, and was amply sufficient for such a purpose. It was all which could have been required, and no further proceedings were taken by the plaintiff in the court below, after it was executed, until the judgment of the Court of Appeals, some six years thereafter. Although the undertaking was not given in pursuance of an order of the

† † See McMahon v. Allen, 22 How., 193 .

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court, yet, inasmuch as it was for the benefit of the appellant, and he chose thus to avoid the necessity of making a motion for a stay, and the plaintiff accepted the undertaking instead of proceeding with the case, as he had a perfect right to do, I am not able to discover any valid, legal ground which will relieve the defendant from liability. It is no answer to say that the undertaking derives its entire force from the statute under which it is given, because there is no provision of the Code, which provides distinctly for an undertaking upon a stay, or the mode or terms by which proceedings shall be stayed by the court. It is enough that it included all that it is required to cover—the final judgment in the case—to render it valid and binding.

The provision of section 341 of the Code, that an undertaking shall be of no effect, unless it be accompanied by an affidavit of the sureties that they are each worth double the amount, cannot affect the validity of the undertaking, because it has been strictly carried out by the affidavit of the sureties, so far as any amount is specified.

As the undertaking in question, clearly included the judgment absolute rendered by the Court of Appeals, under section 11, subdivision 2, of the Code, against the appellant, upon affirming an order, the plaintiff is entitled to a judgment for that amount, with legal costs. As to the costs, I think that the plaintiff is entitled to the extra allowance.^[4] The costs, on the other appeals from orders, are not included in the undertaking, as they are neither costs nor damages, awarded against the appellant, upon the appeal. ■

As the case stands, the plaintiff is entitled to a judgment for the full amount claimed, deducting $180, for costs on affirmance of two orders, in the Court of Appeals, with costs.

Present—Miller, P. J., Boardman and James, JJ.

James, J., dissented.

Judgment ordered for plaintiff, with costs.

* See Beals v. Benjamin, 29 How., 101 ; Clarke v. The City of Rochester, id., 97.

Footnotes

* Rogers v. Kneeland, 10 Wend., 218 .
* Ex parte Eastabrooks, 5 Cow., 27 .