#### John L. Crandell, Plaintiff, *v.*Elizabeth Bickerd et al., Defendants.

(Supreme Court, Greene Special Term,

July, 1900.)

Action, on undertaking for new trial in County Court, to recover judgment for costs on order of Appellate Division sustaining demurrer to answer — Appeal from order of Appellate Division — Code C. P., § 3050.

Where, after a defendant defeated in justice’s court has demanded a new trial in the County Court, the Appellate Division reverses with costs the action of said County Court in overruling a demurrer to a part of an amended answer, and, the defendant failing, to plead ove: in twenty days, the plaintiff thereafter obtains a judgment absolute of the County Court sustaining the demurrer with costs, the mere perfection of an appeal to the Court of Appeals from the order of the Appellate Division affords the defendant, and her sureties on the undertaking given under section 3050 of the Code of Civil Procedure to procure such new trial, no defense to an action brought thereon to recover the County Court judgment for costs, and particularly where their answer does not even allege that the appeal was perfected before action was brought against them. Their proper remedy is to apply for a stay.

The County Court judgment for costs is within the letter of the undertaking, given to procure a new trial in said court, where the same, following the statute, provides that “ if judgment is rendered against the appellant in the appellate court” and execution issued thereon is returned wholly or partially unsatisfied, said sureties will pay the amount of said judgment or the portion thereof remaining unsatisfied.

Demurrers to answers.

John L. Crandell, plaintiff, in person.

George K. Daley, for defendants.

Chase, J.

An action was brought by the International Food Company against Elizabeth Bickerd in Justice’s Court. That action was tried and resulted in a judgment in favor of the plaintiff. *259An appeal was taken from such judgment to the County Court of the county of Columbia and in the notice of appeal a new trial' was demanded in the County Court. An undertaking was given on that appeal by the defendants in this action. The condition of which undertaking was in substantial compliance with section 3050 of the Code of Civil Procedure. In the County Court a motion was made by the defendant Bickerd for leave to serve an amended answer, which being granted, an amended answer was served. The plaintiff demurred to part of the said amended answer, which demurrer was overruled by the County Court and an appeal was taken by the plaintiff to the Appellate Division from said order overruling the demurrer. Thereafter and before the hearing of the appeal in the Appellate Division the action of the International Food Company against the defendant Bickerd was tried on its merits and judgment rendered in favor of the defendant, which judgment has not been set aside nor an appeal taken therefrom. Thereafter the appeal was heard in "the Appellate Division and the order of the County Court overruling the demurrer was reversed with leave to the defendant to serve a further amended answer within twenty days. No further amended answer being served, application was made on- notice to the County Court for judgment sustaining the demurrer, with costs. Judgment was rendered by the County Court against the appellant, sustaining the demurrer, with costs amounting to the sum of $160.92. . Execution has been issued on such judgment and returned unsatisfied. The plaintiff in this action, John L. Crandell, has been the attorney for the International Food Company from the beginning of the action in Justice’s Court. He brings this action, as the owner of said judgment for costs, against the defendants, the obligors in the undertaking. The defendants answer separately. Said answers are substantially alike. The fourth subdivision of each of said answers is as follows: *“*For further amended answer and defense to plaintiff’s complaint, this defendant alleges that the judgment set forth in plaintiff’s complaint, which was rendered in the Appellate Division of the Supreme Court, has been appealed from and the appeal is now pending in the Court of Appeals in this State and no final judgment has been rendered thereon.”

To such defense in each of said answers the plaintiff demurs on the ground that it is insufficient in law upon the face thereof. It may well be doubted whether such alleged defense sufficiently *260states that an appeal has been duly perfected to the Court of Appeals. Assuming that an appeal has been duly perfected to the Court of Appeals, I am still of the opinion that such statement or alleged defense is not sufficient in law upon the face thereof.

The defendants’ remedy in such case is to apply, to the court for a stay of proceedings. If a judgment on a remittitur from the Court of Appeals had actually been rendered before the commencement of this action reversing the order of the Appellate Division and affirming the order of the County Court, it would concededly take away the right of action herein. Such possible termination of the appeal might be alleged as a reason for a stay of proceedings until the determination of such appeal in the Court of Appeals, but the simple fact of such an appeal being perfected is not of itself a legal defense. Rice v. Whitlock, 16 Abb. Pr. 225, and cases cited.

The defense does not allege that the appeal was taken prior to the commencement of this action. It appeal's from the papers that the notice of appeal was served subsequent to the original answer in this case, and on the day preceding the service of the amended answer. The defense in any event should have stated that the appeal was perfected prior to the commencement of this .action. Channing v. Moore, 11 N. Y. St. Repr. 610; Heebner v. Townsend, 8 Abb. Pr. 234.

The demurrers are sustained with one bill of costs and all disbursements to the plaintiff.

Many of the allegations in the answer are subject to criticism by reason of the way in which reference is made to the allegations of the complaint. I have not given the technical objections to the form of the answers special attention by reason of the fact that I think the case should be decided upon other and. more meritorious grounds. The important question arising by reason of the answers is, as to whether the judgment alleged in the complaint being a judgment rendered in the County Court, sustaining the demurrer interposed to the amended answer in the County Court, is such a judgment as is contemplated by the undertaking given by the defendants herein. It is apparent that there is no real dispute of fact in this case. It is rather a contention as to the liability of the defendants on a conceded statement of facts. If the plaintiff can recover herein by reason of the judgment mentioned in the complaint in this action, the answer, so far as the

*261second division thereof is concerned, is untrue. An untrue answer is a sham answer. If the judgment referred to in the complaint is not one contemplated by the undertaking given by the defendants, this answer, so far as it raises such question, should be sustained. When an appeal is taken from a judgment of the Justice’s Court and a new trial is demanded in the County Court, the judgment appealed from is no more effective between the parties, but the case is heard in the County Court *de novo.*All proceedings in the suit thereafter are the same as if the action had been originally commenced in the County Court. Code Civ. Pro., § 3071; Burns v. Howard, 9 Abb. N. C. 321.

The, condition in the undertaking given by the defendants is “that if the said appeal is dismissed, or if judgment is rendered against the appellant in the Appellate Court and execution issued thereon is returned wholly or partially unsatisfied, said sureties will pay the amount of said judgment or the portion thereof remaining unsatisfied.” The judgment referred to in the undertaking of the defendants is a judgment rendered in the County Court. The judgment mentioned in the complaint is within the letter of the contract of the defendants and is clearly and unquestionably covered by the language used in the undertaking. I do not think there is anything in the undertaking itself, or in the papers before me to justify the conclusion that the judgment referred to in the complaint is not within the spirit of the undertaking. H the statute had intended to limit the undertaking to a judgment rendered against the appellant in the Appellate Court on the merits only, other language would have been used. The right to a new trial in the County Court without alleging any error or fraud is a special and unusual privilege given to the appellant. It is quite possible that the undertaking required in such case was intended to be as broad as its language would indicate.

It is difficult to determine just what the defendants intended to deny by the fifth division of the answers; giving that division of the answers its most extended meaning, it simply denies the rendering of a judgment against the appellant contemplated by the undertaking and denies that the plaintiff was the attorney for the International Food Company. The fact that judgment was rendered against the appellant in the Appellate Court, as claimed by the plaintiff, clearly appears from the papers and public records before me. The fact that plaintiff in this action was the attorney *262for the International Food Company in the County Court and in the Appellate Division also clearly appears from the papers and public records before me. Not only do these facts clearly and indisputably appear before nae, but they were conceded in open court herein. So far as the answers raise any issue of facts, they are clearly and concededly untrue. The facts being conceded, I hold that defendants are liable on the undertaking, and the answers should be wholly stricken out as frivolous and sham.

Ordered accordingly.