Hennion v. Kipp

Cullen, J.:

The plaintiff recovered in a court of a justice of the peace a judgment against one Dempsey for the sum of twenty-five dollars and seventy cents. Dempsey appealed to the County Court, demanding a new trial therein. ■ On tliat appeal Dempsey and the defendant gave the following undertaking :

“Whereas, On the 30t-h' day of April, 1896, the above-named plaintiff recovered a judgment in the above-named court, before W. W. Whyard, Esq., Justice, for the sum of twenty-five dollars damages and five 75-100 dollars costs, against the above-named defendant, John J. Dempsey;

“And Whereas, The said John J. Dempsey, defendant, feeling aggrieved thereby, intends to appeal therefrom to the County Court of Rockland county.

“ Now, Therefore, We, said John J. Dempsey and David W. Kipp, of the town óf Orangetown, Rockland county, Hew York, do jointly and severally bind ourselves to Henry M. Hennion, plaintiff above named, in the sum of one hundred dollars, that we will pay to the said Henry JVI. Hennion, the above-named plaintiff, the amount of said judgment for damages, with interest from the date thereof, or so much thereof as may remain unsatisfied, in case said appeal shall be dismissed, or if judgment shall be rendered against said John J. Dempsey, defendant and appellant, in said County Court, and an execution issued thereon shall be returned wholly or partly unsatisfied.

“ Dated at Piermont, Hew York, May 7,1896.”

On the trial in the County Court the plaintiff recovered a judgment for the sum of $138.57. Execution having been issued on the judgment and returned wholly unsatisfied, the plaintiff brought this action to recover of the defendant the penalty of the bond, $100. The defendant answered, admitting his obligation for the amount of the original judgment and interest, which he brought into court, but denying any liability beyond that sum. The County Court rendered judgment for the plaintiff for the amount admitted to be due by the defendant, but the costs of the defendant exceeded the plaintiff’s award, and judgment was rendered in liis'favor for the excess. The defendant’s undertaking was doubtless given under section 3050 of the Code of Civil Procedure, to secure a stay of execution on a justice’s judgment. By that section, it was necessary* to obtain the stay, that the sureties should agree to pay any judgment rendered against the appellant in the County Court. On the faith of the undertaking the plaintiff refrained from issuing execution ; and it is doubtless our duty to construe the undertaking so as to secure to the plaintiff the indemnity the statute intended, if the terms of the undertaking permit of such a result. In our opinion, unfortunately, they do not. The undertaking' on its face is complete, and the liability incurred thereby explicit. The obligation assumed by the surety is in express terms .to pay the amount of the justice’s judgment in either of two contingencies •— the first, if the appeal should be dismissed ; the second, if judgment should be rendered against the appellant in the County Court. Ko reference is made to the recovery of a judgment in the County Court, except as a condition upon which the surety became liable to pay the justice’s judgment., The case is to be distinguished from McElroy v. Mumford (128 N. Y. 304). In that case the undertaking recited the recovery of a judgment against the appellant of affirmance for certain costs and the sureties undertook to pay the judgment appealed from. It was held that the judgment appealed from was the whole judgment of affirmance, and that,, under ■ sections 1317 and 1327 of the Code, the judgment of affirmance included the judgment for the original recovery, although a new judgment for such recovery could not be entered on the decision of the General Term. But it is impossible to construe the justice’s judgment, which the surety agreed to pay, as including the judgment ■of the court not then in existence, and to be rendered subsequently. The case before us seems to resemble most closely that of Concordia Savings & Aid Association v. Read (124 N. Y. 189). In the case cited the undertaking was given to stay proceedings ón a judgment of foreclosure and sale. It did not comply with the statute. It was held that while the undertaking should .be upheld as an agreement between the parties,, the words used were to be given their-usual and ordinary legal signification, and not tó be “ extended by implication in aid of a party who, having it within his power to protect himsélf by requiring a statutory bond, elected to accept something else.”

The judgment appealed from must be affirmed, with costs.

All concurred, except Bartlett, J., absent.

Judgment affirmed,, with costs.