Letson v. Dodge , 1871 N.Y. App. Div. LEXIS 137 ( 1871 )

By the Court, Johnson, J.

The action is upon an undertaking given in a justice’s court, upon the commencement of an action- in that court, for the recovery of the possession of personal property, by the defendant Dodge, against the plaintiff in this action. The undertaking was in the usual form, “ for the prosecution of said action, and the return of said property to the defendant, if return thereof be adjudged, and for the payment, to the defendant, of such sum as may, for any cause, be recovered against said plaintiff.”

Dodge, the plaintiff in that action, was defeated in the justice’s court, and the return of the property was adjudged, with nominal damages, and costs of the action. He thereupon appealed to the county court, and gave the undertaking prescribed by the Code, which stayed all proceedings on the justice’s judgment. The action was after-wards duly certified to the supreme court, and tried at the circuit, where Dodge was again defeated, and a return of the property adjudged, with damages for detention. Judgment was entered accordingly, and for the costs of the action. From this judgment Dodge again appealed to the general term, and gave an undertaking in due form, which stayed proceedings, and the general term affirmed the judgment. Upon this state of facts there' can be no doubt, that the action is properly brought upon the undertaking in the justice’s court, where, the action was commenced. The subsequent proceedings have all been in the same action, and the undertaking in the justice’s court extends to all the proceedings and adjudications, in the same action, through every court to which it may be carried by appeal, in case the party giving the undertaking is finally defeated. This has been repeatedly and uniformly held. (Traver v. Nichols, 7 Wend. 434. Ball v. Gardner, 21 id. 270. Tibbies v. O’Connor, 28 Barb. 538. Bennett v. Brown, 20 N. Y. 99. Bobinson v. Plimpton, 25 id. 484. 2 Waite’s Pr. and Pl. 197, 198.).

The plaintiff in this action was nonsuited at the circuit on the ground, as appears, that an execution had not been regularly issued and returned unsatisfied, according to sections 64 and 65, 2 B. S. 533, which appear to have been retained in the 5th edition of the Revised Statutes, vol. 3, 848, as sections 25 and 26, and which the justice at the circuit held were applicable to this class of actions, when commenced in a justice’s court. In this I think the learned justice was clearly mistaken. The bond provided for, in actions of replevin, by the Revised- Statutes, was a bond executéd to the sheriff, or other officer, by whom the writ was executed, and the right" of action upon that bond was given to the party, by the same statute, only upon the return of execution unsatisfied in whole, or in part; in which case the sheriff was required to assign the bond to the defendant, or his representatives, on their request. The statute, in express terms, made the return of the sheriff" evidence of the breach of the bond, assigned in the declaration. It is very clear that these provisions are not, and cannot be made, applicable to actions of this nature commenced in a justice’s court under the provisions of the Code". It is neither necessary nor proper to undertake to determine in this action whether these sections of the Revised Statutes are still applicable to actions commenced in the Supreme Court, under the Code, for the recovery of personal property. It would not be difficult, I think, to show that they have no application in either case, but are repealed by the Code. It has been so held by the superior court in the city of Hew York. (Livingston v. Hammer, 7 Bosw. 670.)

Execution had, in fact, been issued upon the judgment in the Supreme Court,'and returned wholly unsatisfied before this action was commenced. But after this action had been commenced some three months, such execution was, by the order of the court, set aside, but for what cause does not appear.

But independent wholly of that execution, this action is properly brought upon the undertaking, and the plaintiff ought not to have been nonsuited. The judgment must, therefore; he reversed, and a new trial ordered, with costs to abide the event.

[Fourth Department, General Term, at Syracuse, November 13, 1871.

Mullin, P. J., and Johnson and Talcott, Justices.)