In dismissing the complaint and rendering absolute judgment for the defendants, the general term of the court below committed undeniable error; for it is not certain that the plaintiff might not recover on another trial, and in such case another trial is his legal right. Guernsey v. Miller, 80 N. Y, 181; King v. Barnes, 109 id., 267, 283; 15 St. Rep., 52; Foot v. Ins. Co., 61 N. Y, 571; Capron v. Thompson, 86 id., 418, 421; Gawthrop v. Leary, 89 id., 622 ; Goodwin v. Conklin, 85 id., 21, 26; Whitehead v. Kennedy, 69 id., 462.
It follows, therefore, that the judgment of the general term must be reversed; but, whether the judgment on the verdict should be affirmed, depends upon the absence of error against the defendants on the trial of the cause.
*708The action is against sureties on an undertaking for costs in a proceeding in the United States circuit court for the southern district of ISTew York; and the defense apparent on the trial is, substantially, a denial of non-performance of the undertaking; an accord and satisfaction between the creditors and principal debtors; and a release of the sureties by a suspension of the right of the creditor to enforce his claim against the principal debtor.
The undertaking is coupled with a condition of defeasance; namely, “ if said report is vacated, set aside or a new trial granted, this undertaking to be void and of no effect.” The order requiring the undertaking and the recitals of the undertaking exhibit that it was given to stay judgment pending a motion to set aside the repoi't of the referee and for a new trial in the federal court action. The concession is, that the motion has not been made, and consequently, that the report has not been set aside, nor a new trial granted but the defendants maintain that the motion is still available ; that the order upon the motion, if made, may set aside the report and award a new trial, and that so the undertaking may yet be avoided.
We are of the opinion that the proposition is untenable.
The contention of the plaintiff is that, since the undertaking was ordered for no other purpose than to effect a stay of judgment pending a motion for a new trial, and judgment for costs as well as the principal' debt has been duly entered, and a motion to stay its enforcement' has been denied upon the express ground that being regularly entered it cannot be set aside, avoidance of the undertaking by performance of the condition of defeasance is now a legal impossibility; and that so the action is well' brought.
And such is our conclusion; but, as the point was ruled in ’b favor of the plaintiff on the trial, and is not challenged in the able opinion of the general term below, we are dispensed from argument in its support.
There has been no satisfaction of the judgment in the federal court; an accord, but not a satisfaction; for the agreement between the- parties to the judgment was, that it should be satisfied only by payment of the $5,000 (a condition not yet performed), .and the reléase was placed in escrow to take effect only on tho fulfillment of that condition.
Appellants - contend further, that, in any event, the agreement operates,' during its pendency, to prevent execution of the judgment" and collection of the debt for which they are sureties; and that so they are discharged from liability to the plaintiff. Assum- / ing the 'agreement to be upon a sufficient consideration, still its •effect is not to suspend execution of the judgment; so far the contrary, that it makes express provision for proceedings in its enforcement pending the agreement.
Partial payment upon the judgment does not entitle these defendants, sureties on an undertaking for costs, to a pro rata abatement of their liability. Ives v. The Merchants Bank, 12 How., U. S., 159; Babbitt v. Finn, 11 Otto, 7; Wood v. Fish, 63 N. Y., 250.
*709Ho errror having occurred on the trial of prejudice to the defendants, it results that the judgment on the verdict must be affirmed.
Judgment of tlie general term reversed, and judgment of the trial term affirmed, with costs.
Daly, Ch. J., and Bischoff, J., concur.