Seacord v. Morgan

In tbe year 1850, tbe Plaintiff in this action commenced a suit in the Supreme Court of this State against Nicholas Miller and Leonard P. Miller. The Plaintiff claimed to recover upon a promissory note made by Nicholas Miller, and endorsed by Leonard P. Miller. The maker and endorser, though not jointly liable, were, in pursuance of the provisions of our statute, united as Defendants in the same action. Such proceedings were had in the Supreme Court, that, on the 20th day of April, 1853, the Plaintiffs herein recovered judgment against said Nicholas Miller and Leonard P. Miller, Defendants, for the sum of $261.54.

The Defendants in that action appealed from said judgment to this Court, and thereupon the Defendants in this action, for the purpose of making said appeal effectual, and in compliance with the provisions of the Code, made and executed to the Plaintiff in this action an undertaking, in the usual form, with a condition therein, in these words: “ Now, therefore, we, John "Warrin and Caleb Morgan, do hereby, pursuant to the statute in such case made and provided, undertake that the said Appellants will pay all costs and damages which may be awarded against them on said appeal, not exceeding two hundred and fifty dollars; and do also undertake, that if the said judgment so appealed from, or any

Upon such appeal, this Court affirmed the judgment of the Supreme Court against Nicholas Miller, the maker of said promissory note, and reversed the judgment of the Supreme Court against said Leonard P. Miller, endorser of said note, and judgment was rendered in his favor (Seacord v. Miller, 3 Kern. 55).

The Plaintiff now brings an action upon said undertaking, and avers that the said judgment mentioned in said undertaking was affirmed as to the said Appellant Nicholas Miller, with costs, and reversed as to the said Appellant Leonard P. Miller. That judgment had been perfected in said Supreme Court, upon the judgment of said Court of Appeals, and that an execution had been issued for the amount thereof against the property of said Nicholas Miller, and that the same had been duly demanded of said Nicholas Miller, and that the Defendants had notice thereof. The Defendants denied all the matter set forth in the complaint, and the action was referred to William Kent, as referee, who found all the facts, as stated and set forth in the complaint; also, that the amount of said judgment against said Nicholas Miller was $479.42, besides interest ; and that the same had not been paid, nor any part thereof, but that the same remained unpaid, and entirely unsatisfied; and found, as conclusions of law, that the undertaking was a valid obligation; that the judgment entered against the said Nicholas Miller in the Supreme Court, on filing the remitti-tur from the Court of Appeals, was' duly entered against him, affirming the said judgment so appealed from, and that by the affirmance of the judgment against Nicholas Miller, and the facts in said report contained, the Defendants became bound and indebted to the said Plaintiff for the amount of said judgment, and the interest thereon. Judgment was accordingly entered for the said Plaintiff, and on appeal the same was affirmed at General Term, and the Defendants now appeal to this Court.

The Defendants contend that the judgment so appealed from has not been affirmed.

There is some plausibility, it must be confessed, in this position, and it has been sustained by a very ingenious and able argument by the counsel for the Appellants, and were it an open question in this Court, it would be proper to proceed with the discussion of the views suggested.

But as we understand, the precise question now presented was considered and passed upon by this Court in the case of Gardner v. Barney and Butler, decided here in December, 1863 — not reported. That was an action upon an undertaking given by the Defendants, on an appeal from a judgment of the Special Term to the General Term of the Supreme Court, taken by the Defendants Ogden and Smith. The judgment of the Special Term was against both Defendants, and the appeal was from that judgment by them to the General Term. And the undertaking was similar in form to that given by these Defendants. The General Term of the Third District reversed the judgment, and ordered a new trial. From this order the Plaintiff Gardner appealed to this Court, and this Court reversed the order of the General Term, granting a new trial, so far as it related to the Defendant Smith, and affirmed the judgment of the Special Term as to him, with costs. It also affirmed the order granting a new trial as to the Defendant Ogden, and gave judgment in his favor against the Plaintiff, with costs (Gardner v. Ogden, 22 N. Y. 327 ).

That question is very carefully and fully discussed by the learned Chief Judge. And as his views upon this point have never been reported, and are so conclusive upon the point-under discussion, and received on that occasion the approval of this Court, it is not deemed inappropriate to quote them. Nothing further need be added upon the subject.

Judge Denio said : “ The expressions of the undertaking, which provide for the case upon affirmance only in part, appear to have reference primarily to the amount, and not to the number of persons charged. The language is, that the Appellants, in the case of a partial affirmance, will pay the amount directed to be paid by the judgment, or the part of suoh amov/rut as to which it shall be affirmed, if it be affirmed only in part. But independent of these words, I am still of opinion that this judgment has been affirmed, according to the general sense of the instrument.

“ The decision that the Plaintiff is entitled to the amount of money adjudged to him by the Special Term, is sustained, and the position is upheld, that he is entitled to recover it in action. It was a case in which several damages might be given against one of the Defendants, though the other should be acquitted. This is established by a judgment, affirming the recovery as to Smith alone. The judgment of the Special Term has, therefore, been affirmed, with a variation, however, in this — that the recovery is to be satisfied by one, and not by both of the Defendants. It is not necessary to depart from the language of the instrument in order to charge the sureties. They are to abide according to the terms of their undertaking.

“ There has been an affirmance of the judgment appealed from,

“ The motive for requiring the undertaking was to secure to the Plaintiff the fruits of the recovery, in case it should'be determined that the allegations of error were unfounded. As the Plaintiff is, by the stay of execution,.deprived of the immediate resort to the property of the judgment-debtor, which the law would otherwise give him, and as his title to the amount adjudged in his favor is prirná facie established, it was the policy of the law that he should have security to indemnify him against the possible contingency of the delay. The law assumes the judgment to be such presumptive evidence of his right, that it will not subject him to the hazard arising from the delay of further litigation, without an indemnity against any loss which he might thereby incur. If it should be decided, that in order to hold the sureties the judgment should be affirmed in all its parts, without variation or modification, the provisions for security would be illusory in a great variety of cases, which may be supposed.

“ Let us take the case of an equity suit against two Defendants, and a judgment in a primary Court against one, andan acquittal of the other, and cross-appeals by the Plaintiff as to the discharge of the one acquitted, and by the Defendant, who was held liable; and that the Appellate Court should hold that both were liable, and give judgment accordingly. It is plain that the sureties of the Defendant, who was held liable by the first judgment, ought not to be discharged, for the complaint of that Defendant against the judgment would be shown to be unfounded, and the Plaintiff would, have incurred the hazard against which the undertaking was intended to protect him; and yet it could not be said that the identical judgment appealed from had been affirmed in every particular. The system of the provisions respecting security on

“ The nature of the original action, and the liabilities upon which the recovery was had, are not stated in the present case. We may suppose them to have been what we know, by looking into the former case, they were — an alleged breach of duty on the part of Defendant Ogden, as member of the firm who were the agents of the Plaintiff for the sale of his land, in disposing of it in bad faith, and for a less price than it was worth, the Defendant Smith being the buyer, under such circumstances as would estop him of the defence of a boná fide purchaser. Both the Defendants were held liable for the supposed value of the land; and although the judgment was joint in form, each was made liable on account of his supposed, individual misconduct, and not on account of the delinquency of the othei*. It was more like a judgment against two tort feasors than one against joint-debtors. In such cases the appeal is, in effect, several, by each Defendant; and it would have been perfectly correct for each Defendant to have brought a separate appeal, and to have given a separate undertaking, though it was not irregular for them to join in the appeal, and procure a single undertaking. But the proper construction of the instrument is, that the sureties undertake for each of the Defendants. The Defendant Smith was made liable for the value of the land, on account of having purchased it at a voidable sale, under circumstances which would not enable him to hold it against the Plaintiff’s equity; and Ogden was held liable to the same amount for having sold the land to Smith, in violation of his duty; and the judgment contained a provision that Smith might

These are the views of this Court, so clearly expressed in a case so analogous to the present, that they must be regarded as controlling and not open to further discussion. It is impossible to point out any essential difference between the case under review and that in which the preceding opinion was rendered. If ever a case vras in quatuor pedibus with another, this is with that. To the same effect is the case of Potter v. Van Vranken ( 36 N. Y. 619 ).

Then the appeal, in effect, was in this case, as in that, a several appeal by each Defendant; and we are to construe the undertaking to refer to the character of the judgment it was given to secure. In that light we must hold that the sureties are to be regarded as undertaking, on behalf of Nicholas Miller, that if the judgment against him, from which he had appealed, should be affirmed, he would pay the amount of the judgment; and the same as to the other Defendant. Now, the judgment against the Defendant Nicholas Miller was affirmed by this Court, and upon such affirmance, the liability of his sureties to pay the judgment so affirmed became absolute. It was not impaired by the circumstance that this Court reversed the judgment of the Supreme Court against the other Defendant, Leonard P. Miller. It is not denied that if each Defendant had taken a separate appeal to this Court from the judgment against him, and an undertaking had been executed upon each appeal, that in case of the affirmance of the judgment upon either appeal, the sureties in respect thereto would have become fixed, although the judgment on the other appeal had been reversed. We held in Gardner v. Barney, that in a case like the piresent, it is the same thing as though each Defendant had appealed separately, and the sureties had signed a separate undertaking upon each appeal. That is decisive of the case at bar.

The findings of the referee, that the remittitur from this Court, containing the affirmance of the judgment, was filed in the Supreme Court by its order, is conclusive of the facts, and of the regularity of the Plaintiff’s proceedings. We have no doubt

The judgment appealed from should be affirmed, with costs.

Concurring, Poetee, Paekee, Weight, and Geovee, JJ.

Affirmed.

JOEL TIFFANY, State Keporter.