Post v. Doremus

Miller, P. J. The undertaking executed by the defendants upon the appeal taken to the court of appeals, provided, first, for the payment of all costs and damages which might be awarded against the appellant in said appeal, not exceeding $500; second, for the amount directed to be paid, if the judgment appealed from, or any part thereof, be affirmed, or the appeal be dismissed, or the part of such amount as to which the said judgment should be affirmed, if it be affirmed only in part. And third, to pay all damages and costs which shall be awarded against the appellant on said appeal. The first part restricts the amount to a sum certain, which is specified. The second provides for the payment of a judgment on such part thereof as may be affirmed, when there was no judgment appealed from; and is entirely inapplicable to the order from which the appeal was taken. It may, I think, be regarded as redundant and superfluous, and considered stricken out as surplusage. The third part is unrestricted in its terms, and fairly interpreted, includes all costs and damages arising to the plaintiff by reason of the appeal. This is a legitimate and rational construction from the terms and language of the undertaking, and I think, in judgment of law, is contained in it. Rogers v. Kneeland, 10 Wend. 218. It may, I think, be considered, either as a continuation of the first part, which extends the obligation beyond the $500 therein specified, or as an independent and distinct clause, which has precisely the same effect. In either point of view, it is, I think, broad and comprehensive enough, to embrace all costs and damages which might finally be awarded against the appellant, [629] which necessarily would include the full amount of the judgment awarded by the court of appeals. It is no objection to an undertaking that the penalty is for more than the amount required (Ex parte Eastabrooks, 5 Cow. 27), nor in my opinion, that it is broader in its terms than was actually necessary. Hence, it cannot be urged that this instrument was too comprehensive, and unless it was not embraced within some rule of law, it cannot, I think, be avoided. It is objected that it was for more than was required by section 334 of the Code, which limits such an undertaking to the costs of the appeal, not exceeding $500, and which is the only undertaking required upon such an appeal. It is true, that the first part of the undertaking embraces an appeal from an order, under this section, but it- does not of itself stay the proceedings in the court below, and the only'way in which the proceedings in the court below can be stayed after an order for a new trial has been made, is by a motion directly to the court for that purpose, where the proper terms can be imposed as to security, so as to protect the respondent against loss, if the court of appeals should have affirmed the order, or, as in this case, directed a judgment in his favor. See McMahon v. Allen, 22 How. 193. The undertaking, therefore, under section 334, would not have stayed the plaintiff's" proceedings, and the plaintiff would have been authorized to disregard the appeal, and could have proceeded under the order granting a new trial, the same as if no appeal had been taken. No motion appears to have been made in the case, or any order specifying the terms on which a stay would be granted, but the bond was executed voluntarily, and perhaps for the very purpose of rendering any such motion unnecessary. It contained a provision which, I think, covered all costs and damages, and was amply sufficient for such a purpose. It was all which could have been required, and no further proceedings were taken by the plaintiff in the" court below, after it was executed, until the judgment of the court of appéals, some six years thereafter. Although the undertaking was not given in pursuance of an order of the court, yet, inasmuch as it was for the benefit of the appellant, and he chose thus to avoid the necessity of making a motion for a stay, and the plaintiff accepted the undertaking instead of proceeding with the case, as he had a perfect [630] right to do, I am not able to discover any valid legal ground which will relieve the defendant from liability. It is no answer to say that the undertaking derives its entire force from the statute, under which it is given, because there is no provision of the Code which provides distinctly for an undertaking upon a stay, or the mode or terms by which proceedings shall be stayed by the court. It is enough that it includes all that it is required to cover the final judgment in the case, to render it valid and binding. The provision of section 341 of the Code, that an undertaking shall be of no effect, unless it be accompanied by an affidavit of the sureties, that they are each worth double the amount, cannot affect the validity of the undertaking, because it has been strictly carried out, by the affidavit of the sureties, so far as any amount is specified. As the undertaking in question clearly included the judgment absolute rendered by the court of appeals, under section 11, subdivision 2 of the Code, against the appellant, upon affirming an order, the plaintiff is entitled to a judgment for the amount, with legal costs. As to the costs, I think, that the plaintiff is entitled to the extra allowance. See Beals v. Benjamin, 29 How. 101; Clark v. City of Rochester, id. 97. The costs on other appeals from orders are not included in the undertaking, as they are not either costs or damages awarded against the appellant upon the appeal. As the case stands, the plaintiff is entitled to a judgment for the full amount claimed, deducting $180 for costs, on affirmance of two orders, in the court of appeals, with costs. Jambs, J., dissented. Judgment for plaintiff.