#### George W. Galinger, Plaintiff, *v.*Herman Engelhardt et al., Defendants.

(Supreme Court, New York Trial Term,

January, 1899.)

1. Action against sureties in the Court of Appeals — Notice of the entry of its judgment need not be given.

No notice of the entry of a judgment of the Court of Appeals, dismissing an appeal for the failure of the appellant to give a ,new undertaking on such appeal, directed by that court to be executed, need be given to the sureties on the undertaking, already given on such appeal, as a condition precedent to an action thereon against them, as upon such a dismissal the defeated litigant and his sureties must pay, or the creditors may enforce all his legal remedies.

*¡2.*Same — *“*Costs ” under Code! Civ. Pro., § 1326.

The term “ costs ”, as used in section 1326 of the Code of Civil Procedure relative to undertakings on an appeal to the Court of Appeals, includes only such costs as are awarded in that court.

3. Same — Liability, where the Court of Appeals orders a new undertaking on appeal.

Where the respondent, proceeding under section 1308 of the Code of Civil Procedure, procures of the Court of Appeals an order directing the appellant to give a new undertaking on such appeal and, failing this, that his appeal be dismissed and the appeal is dismissed for such failure, the sureties on the undertaking, already given upon the appeal to the Court of Appeals, are not liable for the payment of the judgment awarded the respondent in the courts below, although said undertaking embodied the requirements of section 1326 and also those of section 1327 of said Code.

Action against sureties on an undertaking given on an appeal to the Court of Appeals.

Geo. W. Galinger, for plaintiff.

W. Sutphen, for defendants.

McAdam, J.

The action is against the defendants as sureties upon an undertaking given on an appeal to the Court of Appeals *50from a judgment recovered against one Hammerstein, May 24, 1897, for $4,139.52, affirmed by the Appellate Division, November 24, 1897, with $90 costs. Notice to the sureties of the entry of the judgment was not necessary as a condition precedent to charging the sureties as such. The only provision requiring notice to sureties is that contained in section 1309 of the Code, which does not apply to appeals to the Court of Appeals, for the obvious reason that said court is the tribunal of last resort, and when that court affirms a judgment or dismisses an appeal, there is no alternative for the defeated litigant and his sureties; they must pay, and if they fail to do so, the creditor is' free to enforce all his legal remedies. Weil v. Kempf, 12 Civ. Pro. 379; Johnstone v. Connor, 18 id. 19; Sterne v. Talbott, 89 Hun, 368. This disposes of the first defense and carries us to the second. It appears that after the undertaking had been approved, to-wit, on June 24, 1898, the Court of Appeals required Hammerstein, the appellant, to give a new undertaking within ten days thereafter, and on his failure to furnish the same, that court, on July 20, 1898, dismissed the appeal, and judgment was thereupon entered on the remittitur for $34 costs. The sureties claim that, in consequence of the order requiring a new undertaking, followed by the order dismissing the appeal, because it was not given, they were discharged from all liability. Appeals to the Court of Appeals are regulated by section 1326 of the Code, which provides that, “ To render a notice of appeal * * * effectual for any purpose "" " * the appellant must give a written undertaking, to the effect, that he will pay all costs and damages, which may be awarded against him on the appeal, not exceeding five hundred dollars. The appeal is perfected, when such an undertaking is given and a copy thereof, with notice of the filing thereof, is served, as prescribed in this title.” The term costs, as used in this section, refers to the costs incurred in the Court of Appeals, and the term damages to the 10 per centum upon the amount of the judgment which that court may award upon affirmance thereof. Code, § 3251, subd. 5. So, that a defeated litigant may, in a proper case, appeal as of right to the Court of Appeals, on giving security only for the costs and damages which that court may award, not exceeding $500. The costs in the Court of Appeals in this instance amount to $34, and the liability of the sureties on that portion of the undertaking required by *51section 1326 is fixed at that sum — nothing more. The undertaking has its consideration in the attainment of the object for which it was given. Thompson v. Blanchard, 3 N. Y. 335; Bildersee v. Aden, 62 Barb. 175. The sureties by their undertaking enabled the appellant to perfect his appeal to the Court of Appeals, and having attained that object, they have no defense to the $34 before referred to. As to their liability for the amount of the judgments appealed from, a different question arises, as the undertaking in that respect did not attain the object for which it was given. Section 1327 provides that *“*If the appeal is taken from a judgment for a sum of money * * * it does not stay the execution of the judgment * * * until the appellant gives a written undertaking to the effect, that if the judgment * * * appealed from, or any part thereof, is affirmed, or the appeal is dismissed, he will pay the sum, recovered * * * or the part thereof, as to which it is affirmed.” . Section 1334 provides that “ When two or more undertakings are required to be given, as prescribed in this title, they may be contained in the same instrument, or in different instruments, at the option of the appellant.” The undertaking in suit contained the two undertakings in one, but it must, nevertheless, be regarded, for the purpose of interpretation, as if contained in two separate instruments. So interpreted the question of liability of the sureties for the judgments below is simplified. In Collins v. Ball, 31 Hun, 187, the respondent obtained an order requiring the appellant to file a new undertaking within twenty days thereafter. The appellant failed to comply with the'order and the respondent proceeded to execution. Upon the affirmance of the judgment the respondent brought an action against the sureties on the original undertaking, and the court held that they were not liable! The court, at page 190, said: “ The exigency or condition of the undertaking, when read in connection with the statute, was in substance, that the sureties would pay the judgment on its affirmance if the proceedings to enforce it were stayed pending the appeal and until such affirmance. The respondents, after obtaining the order they did at Special Term, had an election still to treat the undertaking as an operative instrument, or to disregard it and proceed with the other remedy, which the law in that case permitted. But we think they could not have both.” In Manning v. Gould, 90 N. Y. at p. 480, the court said: “Ho reason can be sug*52gested why the respondent should be permitted to disregard the undertaking and proceed upon the judgment as if none had been given, and yet have all the advantages that the undertaking was intended to secure. The only object and purpose of the undertaking was to stay the execution of the judgment until the appeal had been heard and determined. The respondent cannot have the dual right to enforce the judgment pending the appeal as if no undertaking had been given, and at the same time treat it as valid security for the payment of the judgment.” See also Hemmingway v. Poucher, 98 N. Y. 281; Wing v. Rogers, 138 id. 361. These eases, it is true, refer to undertakings given upon appeals from the Trial to the General Term, in order to obtain statutory stays of proceedings, but the reasoning of the courts is so logical that it is alike applicable to similar undertakings given for a like purpose in the Court of Appeals. This seems so particularly in view of section 1308 of the Code, authorizing the court in which the appeal is pending to require a new undertaking, for this section expressly provides that if the appellant fails to give the new undertaking, as required, “ the appeal must be dismissed * * * as if- the original undertaking had not been given.” It is, figuratively speaking, a summary but polite method of throwing sureties out. The appeal was dismissed upon the sole ground that the respondent repudiated the sureties upon the undertaking and did not want them continued as such, and, having succeeded in throwing them out, no matter how gracefully, he cannot now be allowed to treat such sureties as continuing obligors for the payment of his judgment. This seems to be the sensible and legal view of it. Eor these reasons there must be judgment for the plaintiff, but only for $34, the amount of the Court of Appeals costs.

Judgment for plaintiff, with costs.