Parsons v. Travis — 9 N.Y. Super. Ct. 659

Majority

p. 659

Reuben Parsons, Appellant, v. John Travis, the Mayor, Aldermen, and Commonalty of the City of New York, and Smith D. Bellows, Respondents.

(Special Term.

Before Bosworth, J.)

September, 1853.

Headnote

Where an appellant from the special to the general term deposits a sum of money instead of giving an undertaking, and appeals from the general term to the Court of Appeals, giving the proper undertaking, with sureties, the money so deposited must remain in court until a final determination in tfie Court of Appeals.

A judgment was rendered in favor of the defendants for their costs of this action, which was duly docketed. The plaintiff appealed to the general term, and deposited with the clerk $250 in lieu of giving the undertaking prescribed by the Code, The judgment having been affirmed at general term, the plaintiff appealed to the Court of Appeals, and gave an undertaking which stayed all proceedings in this court, pending the appeal, on the judgment appealed from. The sureties not having been excepted to, he now moved for an order directing the clerk of the court to pay to the plaintiff the $250 deposited on' appealing from the judgment of the special term to the general term of this court.

J. Graham, for the appellant,

made and argued the following points,

I. It has been held in Virginia, that the lien of a judgment,

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and the right to an elegit upon the judgment, are co-existent; that the one cannot exist without the other. (The Bank of the U. S. v. Winston, 2 Brockenbrough’s R. 252.) The ground is, that the lien of a judgment is created by statute, and falls or fails with the right to enforce it. An elegit is analogous to a fi.fa. in this state.

II. Previous to the Code, bail in error was a supersedeas of execution. (Graham Prac., 2d ed. 951.) This relates to personal property.

III. The undertaking in this case, on the appeal to the Court of Appeals, covers all matters included in such an undertaking as would have to be given on an appeal from a special to a general term of this court. The condition is that the appellant will pay the amount directed to be paid by the judgment, i. e, the judgment appealed from, or the part, &e., &e. (Code, § 335.) It must be that this undertaking, which can be objected or excepted to, § 341 (as regards sufficiency, &c.), by the respondents in the appeal, was intended to have this effect. The very stay which it works operates to discharge the sureties in any previous undertaking from liability. Are they to remain liable too, and until the determination of the second appeal? If the previous undertaking, if one had been given, would have been discharged, or merged in the undertaking in the Court of Appeals, by parity of reason, the money deposited in lieu of the former can be drawn out of court. There is no reason why it should be held.

TV. If the motion is not gr; ,nted, there should be no costs on the application. It involves an important point, as yet unsettled.

R. J. Dillion, for defendants,

insisted that the motion ought not to be granted, upon the following grounds.

I. The money stands in the place of the undertaking. If the appellant would not have been entitled to a cancelment of the undertaking he cannot be entitled to the money.

II. The undertaking is not satisfied or discharged by the appeal. The condition has not yet been performed.

III. The sureties are not discharged by the appeal. The

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staying proceedings being granted not by the consent of the parties, but by operation of law.

IV. It was intended that the respondent should have a double security, one on each appeal. There is no precedent to show that the latter appeal cancels the bonds on the former. And costs should be granted because it is not a new point of practice, but one which, from the absence of authority, was never considered to be tenable.

J. Graham, in reply.

I. In relation to the respondent’s first point, the law cancels the undertaking referred to. That is the effect of the undertake ing on appeal.' It merges the former.

II. In relation to the respondent’s second point, the condition of the undertaking is incorporated into the undertaking on appeal. The respondents can lose nothing by being confined to the undertaking on appealing to the Court of Appeals. They have the" right to see that it is sufficient. They can except to the sufficiency of the sureties. The idea of the law accumulating securities for the same thing, as the appeals multiply, is ' preposterous. If the previous undertaking was not discharged, if it remained in force, an undertaking securing the costs of the appeal would be sufficient. The maxim, Nihil est lieitma quod est contra raMonem, applies. The respondents’ position is unreasonable,

III. It makes no difference how the time of the principal is enlarged, the sureties are discharged. They do not contract in view of an appeal. It is for this reason the law requires the insertion of their liability in the undertaking on the appeal from the judgment for which they would otherwise be bound.

IV. To say that it was intended the respondents should have-a double security, is assuming the whole matter in dispute. Why this intention ? What reason is there for it ? It is true no authority can be found directly sustaining the application. Such a case has not arisen before. If it has, the adversaries of the party depositing the money in court must have consented to its withdrawal, and not exhibited the illiberality which the respondent’s counsel have manifested in this case in not ex

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tending a similar consent to the appellant. Costs ought not to be allowed, if the application is denied. The meagreness of the respondent^ reply proves that the point involved in it is enveloped in doubt.

Perfecting an appeal from a judgment at special term to the general term, or from a judgment of affirmance by the general term to the Court of Appeals, by giving such an undertaking as stays all further proceedings in the court below, upon the judgment appealed from, neither divests the,lien of either of the judgments appealed from, nor discharges the sureties on the appeal first taken from the special to-the general term.

Section 8 of 2 E. S. 359, prescribing the duration of liens by judgment, expressly provides that the time during which the party recovering a judgment shall be restrained from proceeding thereon by the operation of any writ of error, shall not constitute any part of the ten years, which is made the limit of the lien, as against purchasers in good faith, and subsequent encumbrancers. Section 6 makes the lien absolute and unlimited as against the judgment debtor. Section 1 limits it to ten years as against a certain class of persons, but even as against these, section 8 continues it beyond the ten years for such term of time as the plaintiff in the judgment shall be restrained from proceeding on it by the operation of a writ of error. This section, in effect, not only declares that an appeal, which operates as a stay, shall not divest the lien of the judgment, but shall not abridge its duration as against bond fide purchasers and subsequent encumbrancers, but on the contrary shall extend it as against them, for an additional period coexistent with the time that proceedings upon it are thus suspended.

It was because such was the law in this State, that § 282 of the Code provided a way in which a suspension of a lien by judgment might be effected “ during the pendency of the appeal as against purchasers and mortgagees in good faith,” But even this section does not confer power to suspend the lien as against the judgment debtor, and perhaps not as against subsequent encumbrancers by judgment.

The objection, that the sureties in the undertaking are dis

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charged, by the extension of time procured by the principal by means of the stay, is untenable. It is not an extension obtained by an arrangement between the judgment debtor and the plaintiff, and by the consent of the latter. The extension is given by law, and against the will of the plaintiff. The principle contended for has no application to this case. The debtor has deposited his own money; no question arises as to the rights or liabilities of sureties, hut the only questions presented affect solely the rights and liabilities of the judgment debtor.

A judgment of a court of record is not merged by the recovery of a subsequent judgment in an action upon the first, either in the same or in a different court. (Mumford v. Stocker, 1 Cow. 178 .) Nothing but actual satisfaction will cancel the first judgment, or divest its lien.

The judgment of the Court of Appeals, -if one of affirmance, like that of the general term, will have no other effect than to affirm the judgment, which, the money now applied for, was deposited to pay, in that contingency. The defendants have a right to resort to the sum deposited, in the event of an affirmance by the Court of Appeals, and the motion must be denied.

Approved on consultation.

Cases cited

Mumford v. Stocker 1 Cow. 178 N.Y. Sup. Ct. p. 663