Chamberlain v. Applegate

Headnote

Undertaking—on appeal—validity of—construction of.

In an action by C. against S. to enforce payment upon a contract for the sale of real estate by C., a judgment was rendered directing the sale of the real estate and the payment of the amount found to be due C. from the proceeds, but no personal judgment was rendered against S. S. appealed and gave an undertaking executed by defendants to stay proceedings under Code, § 335, instead of under section 338, as it should have been. The undertaking, after stating that a judgment for the amount adjudged to be due had been rendered against S., and undertaking that the costs should be paid, provided that if the judgment appealed from should be affirmed, S. would pay the amount directed to be paid by the judgment and all damages awarded against him in the appeal. In an action upon the undertaking for a deficiency resulting from a sale of the land after the decision of the appeal. Held., (1) that though not in the form adapted to the appeal, it was a'valid obligation against defendants so far as by its terms it imposed any obligation for the satisfaction of the judgment {Decker v. Judson, 16 N. Y. 439 ); (3) that the obligation was limited to the amount directed by the judgment and did not extend to that of the amount found due C. on the contract, and (8) if any loss resulted to 0. by the delay in the sale of the lands by reason of the time consumed in the appeal in the absence of evidence of what the amount of that loss was, the plaintiff would be entitled to recover only nominal damages therefor on the undertaking.

Appeal by plaintiff from a judgment in a cause tried at the circuit by the court without a jury in which plaintiff recovered nominal damages and defendants recovered costs.

The action was brought by Calvin T. Chamberlain against Joseph Applegate and others upon an undertaking on appeal executed by defendants in an action by plaintiff’s assignor against one Schomberg and others.