Upon the appeal in this action from the supreme court to the court of appeals, an undertaking was given apparently to cover the costs of-the appeal only. There had been an undertaking given upon the appeal from the trial count to the general term, which provided for the payment of the judgment and costs. An action was brought upon the undertaking that was given upon the appeal to the court of appeals. A judgment was given thereon for the original judgment, the costs of the general term, and the costs of the .court of appeals. Upon appeal, the general term *692concluded that the undertaking was not given to cover the judgment and general term costs, and reversed the judgment. The plaintiff appealed to the court of appeals, and the decision is not yet made. This action was brought to recover upon the undertaking given upon the appeal to the general term. Judgment was given for the original judgment and for the general term costs. The sole question is whether the first action is .a bar to this one. As the record stands, it is not. The first judgment is entirely reversed, and the plaintiff is justified in acting upon the reversal. If the court of appeals reverse the judgment of the general term, there will be two judgments for the same amount; but there can be but one satisfaction. In this case the sureties are the same in both appeals. If it were otherwise, an action against the sureties on each appeal would have been rejected. The judgment should be affirmed, with costs.
McElroy v. Mumford et al.
(Supreme Court, General Term, Second Department.
December 14, 1891.)
Appeal—Liabilities on Undertakings—Conclusiveness op Judgment.
On appeal to the general term from a judgment for plaintiff, an undertaking was given for the judgment and costs. The judgment was affirmed, and, on appeal to the court of appeals, another undertaking, with the same set of sureties, was given, apparently to cover .the costs of this appeal. The judgment was again affirmed. In an action on this second undertaking, judgment was recovered for the amount of the original judgment and the costs, both in the general term and the court of appeals. On appeal, the general term reversed this judgment, on the ground that this undertaking only covered the costs in the court of appeals. Prom this decision plaintiff appealed. Held that, since the judgment on the second undertaking had been reversed, the action thereon was not a bar to an action on the first undertaking against the same sureties, although the appeal from such reversal was still pending.
Appeal from circuit court, Kings county.
Action by Samuel McElroy against Henry Mumford and another. From a judgment entered on the decision of the court on a trial without a jury, upon a stipulation by the parties setting forth the facts admitted, defendants appeal. Affirmed. For former report, see 13 27. Y. Supp. 437.
Argued before Barnard, P. J., and Dykman and Pratt, JJ.
Leslie W. Russell, (Welton Percy, of counsel,) for appellants. Frank P, Martin, (John C, Shaw, of counsel,) for respondent.
Case Details
16 N.Y.S. 691
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