Ryan v. Webb

Churchill, J. : The appeal from the order of removal to the General Term, including the stay of the execution of the order, was governed by title 4, chapter 12 of the Code. (Code, § 1360.) Such stay could only be by order, which could be made with or without security in the discretion of the judge making it; but if security was required, the provisions of title 2, chapter 12 applied. (Code, § 1351.) The order appealed from was one directing the delivery of personal property and the undertaking should have been, that the appellant would obey the direction of the appellate court. (Secs. 1328, 1329.) Instead, it followed section 1327, the sureties undertaking that if the order appealed from was affirmed, the appellant (in addition to the costs of the appeal) would pay the sum recovered or directed to be paid by the order. The order appealed from did not direct the payment of any sum of money, and section 1327 did not apply to the appeal. (Grow v. Garlock, 29 Hun, 598; Bank of Havana v. Moore, 8 Weekly Dig., 198.) As a statutory obligation the undertaking was therefore invalid. (Post v. Doremus, 60 N. Y., 371, 377; Hollister v. McNeill, 31 Hun, 629.) But upon this undertaking the appellant Webb obtained a stay of proceedings pending the appeal. The undertaking thereby became' operative and binding as a common-law agreement. Toles v. Adee, 84 N. Y., 222, 238; Goodwin v. Bunzl, 6 Civ. Pro. R., 226.) In construing such an agreement, the language Used is to have a reasonable interpretation according to the intent of the parties, as disclosed by the instrument read in the light of surrounding circumstances and of the purpose for which it was made and so as, if possible, to give the instrument its intended effect. And this applies to the obligations of sureties as well [438] as any other, and if the expressions used by the surety are ambiguous, the ambiguity will be taken most strongly against him. (Waldron v. Willard, 17 N. Y., 466; Belloni v. Freeborn 63, id., 383.) A considerable part of the assigned property had come into the possession of Webb at the sheriff’s sale. The order appealed from required him to pay over and surrender to Ryan all property which had come into his hands or under his control as assignee under the assignment. The undertaking was given, as the evidence shows, to enable him to keep possession of the property. That with the attending circumstances warranted a finding that the sureties by the language used, intended to undertake, in case the order was affirmed, that the appellant would do what the order required him to do, i. e., surrender the property to the new assignee, and effect should be given to the undertaking according to that intent. It is claimed for the respondents that nothing came into the hands of Webb as assignee; that he acquired title as well ^possession at the sheriff’s sale; and that, therefore, no failure to obey the order of the county judge was shown. This position is not tenable. The assignment was properly executed by both parties, delivered and recorded in January, 1881, and the title to the property thereupon vested in the assignee. (Warner v. Jaffray, 96 N. Y., 248; Matter of Farnam, 75 id., 187.) Webb’s failure to give a bond did not divest him or revest Winters with the title. (Brennan v. Willson, 71 N. Y., 502.) The sale by the sheriff in March, 1881 on an execution against Winters, passed no title since Winters had none to part with. Webb then acquired possession as well as title, and held the property under the assignment and subject to its trusts. The county judge erred in holding that the undertaking was not one upon which the plaintiff could recover for the value of the property, and in directing a verdict limited to the costs of the appeal to the General Term. The judgment should be reversed and a new trial granted, with costs to abide the event. Hardin, P. J., concurred in the result on the authority of Toles v. Adee (84 N. Y., 222); Follett, J., not voting. Judgment reversed and a new trial ordered in the Jefferson County Court, with costs to abide the event.