Bennett v. American Surety Co.

Patterson, J.: The plaintiff sued upon an undertaking given on an appeal to the Court of Appeals. It was executed in an action brought by one George Garby against James Gordon Bennett. Garby had obtained a judgment against Bennett, who moved for a new trial of the action in which it was entered, which motion was denied, but on appeal to the Appellate Division in the second department the order denying the motion for a new trial as well as the judgment against the defendant Bennett were reversed and a new trial was granted, with costs to abide the event. Thereafter Garby appealed to the Court of Appeals from the order and judgment of the Appellate Division and gave a stipulation that in case the order should be affirmed judgment absolute should be rendered against him. In connection with that appeal, Garby furnished the undertaking executed by the defendant in this action, the provision of which is as follows : “ How, therefore, the American Surety Company of Hew York, having an office and principal place of business at Ho. 100 Broadway in the City of Hew York, does hereby, pursuant to the statute in such case made and provided, undertake that the appellant will pay all costs and damages which may be awarded against the appellant on said appeal, not exceeding five hundred dollars.” The Court of Appeals affirmed the order of the Appellate Division and directed judgment absolute in favor of Mr. Bennett, with costs in all of the courts. In the present action it was shown that the costs in all the courts as taxed would amount to the sum of $465.31, which amount it is not disputed is collectible from Garby by execution. On the trial of the present action, which was before the court without a jury, the justice presiding held that as against the defendant, the American Surety Company of Hew York, the plaintiff Bennett was entitled to recover only the sum of $151.55 and interest, that being the amount of the costs in the Court of Appeals. The question arising upon this appeal is whether or not Mr. Bennett is entitled to recover the costs in all the courts taxable against Garby, or only those costs which accrued after the appeal was taken from the Appellate Division to the Court of Appeals. If we were to have regard to the phraseology of the undertaking alone, it would seem to be quite clear that the surety company did undertake to pay all the costs that might be awarded on the appeal [470] —the reasonable construction of which would seem to be the amount that might be awarded by the Court of Appeals on the determination of the appeal. However, the subject is one which is Hot left open to original construction, but has been determined by the Court of Appeals. The undertaking sued on in this case was given pursuant to the provisions of section 1326 of the Code of Civil Procedure, and was required in order to perfect an appeal to the Court of Appeals, and not to stay proceedings. It is provided by that section that, to render a notice of appeal to the Court of Appeals effectual for any purpose, except where otherwise specially prescribed by law that security is not necessary to perfect an appeal, the appellant must give a written undertaking to the effect that he will pay all costs and damages which may he awarded against him on the appeal, not exceeding $500. This section as to the requirement that the surety will pay all costs and damages which may be awarded on the appeal (irrespective of the amount) is a re-enactment of section 334 of the Code of Procedure, and under that section it has been held by the Court of Appeals in Post v. Doremus (60 N. Y. 371), and Burdett v. Lowe (85 id. 241) that where an undertaking is given merely to perfect an appeal to the Court of Appeals and not to operate as a stay, the undertaking covers only what the statute calls for, and that is, such costs as are taxed as costs of the appeal to the Court of Appeals. The question here is as to the measure of liability of the surety company under its contract, and not the amount of costs recoverable of the plaintiff in the action in’ which that undertaking was given. Therefore, as the Court of Appeals has, in the cases cited, determined the meaning of the words “ on the appeal,” in an undertaking given under an analogous provision of law, we must follow its decision. The judgment appealed from should be affirmed, with costs. O’Brien, McLaughlin and Laughlin, JJ., concurred. Judgment affirmed, with costs.