Robert v. Donnell , 10 Abb. Pr. 454 ( 1860 )

By the Court.—Hilton, J.

—The instrument sued on being an undertaking of the defendants to answer for the debt of another, and, expressing no consideration upon its face (2 Blackst., 158), its validity as an obligation must depend upon its being shown to have been given in the form prescribed by, and pursuant to, the requirements of some statute. (Slack a. Heath, 4 E. D. Smith, 95.)

It appears to have been given upon an appeal taken to the general term of the Marine Court from a judgment entered by the direction of a single justice of that court; and it is insisted that upon such an appeal an undertaking of this kind is required by the provisions of section 5, of “ an act in relation to the Marine Court,” passed July 1,1853 (laws of 1853), which declares that such appeals may be taken “ in the same manner, and with the like effect as appeals in the Supreme Court, from the decision of a single judge to the general term,” and it is upon the meaning of this language that the right of the plaintiff to recover, must depend.

The Code indicates the manner of taking such appeals in the Supreme Court, and their effect when taken ; and to its provisions we must therefore look for the purpose of determining the intent of the Legislature in adopting the section of the Marine Court act referred to.

By referring, then, to the Code, it will be seen that section 327 prescribes the 'manner of taking such an appeal, which is by serving a notice in writing upon the adverse party, and on the clerk, stating the appeal to be from the judgment or some part thereof. Section 332 requires this to be done within thirty days after written notice of the judgment shall have been given to the appealing party, and sections 329 and 330, state the effect of such an appeal to be, to bring the judgment before the appellate tribunal, when it may be reversed, affirmed, or modified.

Eothing is thus far said about an undertaking, or, indeed, is any required upon such an appeal, unless the appellant desires a stay of proceedings upon the judgment, which may be obtained by an order of the court or judge, without any security whatever, under section 348, or by giving an undertaking in form like the one upon which this suit is brought.

It is thus apparent that the giving of security is in no proper sense a part of the appeal; it is neither connected with the manner of taking it, nor its effect when taken, nor is it necessary to be given to procure a review of the judgment, the appeal being perfect without it.

For these reasons I think the undertaking sued upon does not fall within the requirements of any statute, and is, therefore, of no binding force as an obligation.

I am aware that Judge Mitchell, in delivering the opinion of the Court of Appeals, in the case referred to by Brother Brady, uses the language he ascribes to him; but it was merely dicta, expressed evidently without an examination of the sections of the Code to which I have referred, and in no way connected with the question before the court for its determination.

Judgment should be affirmed.