Hyperlawhypertext legal database Forty-Second Street & Grand Street Ferry Railroad v. Guntzer 36 N.Y. Super. Ct. 567

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Forty-Second Street & Grand Street Ferry Railroad v. Guntzer

36 N.Y. Super. Ct. 567 4 Jones & S. 567 Court N.Y. Super. Ct. Decision date 1873-11-29 English

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p. 567
THE FORTY-SECOND STREET AND GRAND STREET FERRY RAILROAD COMPANY, Plaintiff and Respondent, v. J. WILLIAM GUNTZER, Defendant and Appellant.
Before Barbour, Ch. J., Monell and Freedman, JJ.
Decided November 29, 1873.

Headnote

I.—Security for Costs given on Behalf of Infant Plaintiff.
1. What is covered by.
a. The costs on appeal to the General Term as well as the costs below are secured thereby.
1. Where the condition of the bond was “that the obligors should pay on demand all costs that might be awarded to the defendant”—
Held,
That the obligors were liable for costs of appeal to the General Term.
Appeal from an order.
This action was brought on a bond made by defendant and one John Schriefer, whereby they jointly and severally bound themselves pursuant to the statute in such cases made and provided in the sum of $250 to the plaintiff in this action or its assigns, the condition of the bond being that if the above-named defendant and said Shriefer should pay on demand all costs that might be awarded to the defendant (being the plaintiff herein) in a certain suit commenced in this court by Michael
p. 568
Shriefer, an infant, by his guardian, John Schriefer, then the bond to be void, else to remain in full force.
The bond was given pursuant to an order of the court made in said action of Michael Schriefer.
That action resulted in a judgment for the defendant therein for §159.16 costs. An appeal was taken to the General Term, which resulted in an affirmance of the judgment, and a judgment for defendant for §77.49, costs of appeal.
The complaint in this action set forth the above matters and claimed-to recover the said two sums of §159.61 and §77.49.
The defendant demurred to so much of the complaint as sought to charge him with the costs of appeal on the ground that it appeared that the complaint did not state a cause of action against him.
At Special Term the demurrer was overruled, and an order was thereupon entered ordering that the demurrer be overruled, and that plaintiff have judgment thereon, but giving defendant leave to answer on payment of costs.
From this order defendant appealed to the General Term.
Jacob A. Gross, attorney and of counsel for appellant, urged:
I.—The condition of the bond of defendant is “ To pay on demand all costs that might be awarded to the defendants in said suit.”
This does not include costs of appeal to the General Term.
1. The suit is at an end on entry of judgment, which is “ the final determination of the rights of the parties to the action” (Code, § 245; Bouvier's Law Dict. 12 ed., vol. 1. p. 78 ; 3 Sharswood’s Blaclcstone's Comm. 116).
2. The designation of the parties as plaintiff and de
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fendant (§ 70) ends with the judgment. On appeal they are to be designated as appellant and respondent respectively (Id. § 326).
3. -The Code itself not only regulates the security to be given on the appeal, but prescribes the only penalties for neglect; the proceedings are not stayed (§ 348).
4. The bond in question is expressly and only for the costs in the suit, and therefore differs from most others referred to in decided cases, which provide for full indemnity to the party injured (Bennet v. Brown, 31 Barb. 158 , 162, and cases cited).
II.—The decision at Special Term extends the undertaking of the surety beyond its terms, and violates the well established principles to the contrary effect (Rayner v. Clark, 7 Barb. 581 , and cases cited; 3 Code P. 239; 3 Duer., 324 ).
Ely & Smith, attorneys, and of counsel for respondent, urged:
It is well settled that on a bond for costs, the sureties are liable for the costs of appeal as well as for those previously incurred. It is held that the bond cannot be prosecuted until the appeal is decided (Van Vleck v. Clark, 38 Barb. 31 ; 24 How. Pr. 190 ; Tibbles v. O’Conner, 28 Barb. 538 ).
Besides, the language of the bond in suit covers “ all costs that might be awarded to the defendants in said action.”

The order below should be affirmed. The obligors on the bond are liable for the costs of the appeal to the G-eneral Term.

Order affirmed.

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