The East River Bank v. Cutting and Caldwell. THE EAST RIVER BANK v. CUTTING and CALDWELL. When two persons are named as defendants in a summons and complaint, and only one is served, and judgment is thereupon perfected against him, there is, then, no action pending against the other, until he is served with the summons. If he is served with it, after judgment against the other, and intermediate those periods, the title to the cause of action becomes vested in a third person, the latter cannot, under § 121 of the Code, be substituted, as plaintiff in the action against the defendant last served. (At Special Term, December 3, 1857. BOSWORTH, J.) On THE defendants are sued as maker and endorser of a note; Cutting, the maker, was served with the summons in July last, and judgment entered against him, on failure to answer. the 10th of October, the operations of the plaintiff were suspended by the appointment of David Banks as a Receiver. Caldwell was severed with the summons on the 12th of November. It is now moved that the Receiver be made plaintiff in the action, by substitution, which the defendant opposes. BOSWORTH, J.-There has been no transfer of interest pending the action. By taking judgment against Cutting, the action was severed, and as to Cutting, determined by the judgment. There was, then, no action pending as against Caldwell. It could only be commenced by the service of the summons upon him. Before it was so commenced the cause of action was transferred to the Receiver. The motion cannot be granted under § 121 of the Code. If the action could be brought in the name of the present plaintiff, by serving the summons on Caldwell, when service of it was made on him, a recovery can be had in the name of the present plaintiff. If it could not, then, granting the motion, would be substituting, after issue joined, a person, as plaintiff, who had a right to sue, for one who had no right to sue. Motion denied; with $7 costs to abide event. Burrall v. Vanderbilt. CHARLES BURRALL v. JACOB VANDERBILT and THEODORE R. B. DE GROOT. When several defendants, against whom a judgment has been recovered, unite in an appeal, from it, to the General Term, and third persons execute, as sureties, an undertaking on such appeal, in the terms prescribed by section 335 of the Code, such sureties are not discharged from liability, merely because some of such appellants abandon their appeal, if the respondent obtains an affirmance of such judgment. Neither are such sureties discharged, because an order is made on the consent of the respondent's attorney, without their consent, or notice to them, that the Clerk enter on the docket of such judgment, the words, "secured on appeal," and such entry is, thereupon, made. The facts that, after suit is brought on such an undertaking, the judgment of affirmance is appealed from to the Court of Appeals, and such an undertaking is given as is required, to stay proceedings, in the Court below, on such judgment, cannot be plead in bar, or in abatement of the action, on such undertaking. (Before HOFFMAN and PIERREPONT, J.J.) Heard, January 12; decided, February 6, 1858. THIS action comes before the Court, at General Term, on an appeal by the defendants, from a judgment rendered against them, on the trial of the action, by the Court, without a jury. The plaintiff having, on the 4th of April, 1855, recovered a judgment, in this Court, for $1153-90, against Garret Van Cleve, Joseph Carpenter, George R. Jacques, and William H. De Groot; the four persons, last named, on the 17th of April, 1855, appealed from that judgment to the General Term, aud the defendants in the present action, executed an undertaking, as sureties for such appellants. By such undertaking, the said Jacob Vanderbilt and Theodore R. B. De Groot, did "undertake, that the said appellants will pay all the costs and damages which may be awarded against them on said appeal, not exceeding two hundred and fifty dollars; and do also undertake, that if the said judgment so appealed from, or any part thereof, be affirmed, the said appellants will pay the amount directed to be paid by the said judg ment, or the part of such amount as to which the said judgment Burrall v. Vanderbilt. shall be affirmed, if it be affirmed only in part, and all damages which shall be awarded against said appellants on the said appeal." The present action is brought on that undertaking. The complaint alleges the recovery of the judgment of the 4th of April, 1855, the taking of an appeal from it, the giving of the undertaking in question, the affirmance of the judgment appealed from, with $83 costs of the appeal, recoverable from the appellant, Wm. H. De Groot, the filing of a judgment roll containing the judgment of affirmance, and non-payment of the judgment so affirmed, or of the costs of said appeal, or of any part thereof, and prays judgment for the amount thereof, with interest. The defences set up in the answer, are, 1st, that there has not been "any judgment against said defendants jointly, of affirmance of the judgment appealed from." 2. That when said appeal was taken, the judgment appealed from was a lien, on real estate of William H. De Groot, of sufficient value to pay it. After the defendants executed such undertaking, as such sureties, the plaintiff without their consent, or notice to them, permitted said De Groot to have entered, upon the docket of said judgment, the words, "secured on appeal," whereby he was enabled to, and did convey all his real estate, and they, thereby, lost, and were deprived of their subrogatory right of indemnity, against said property. 3. That said De Groot has appealed from said judgment to the Court of Appeals, and perfected his appeal, whereby the right to demand the amount thereof, is suspended until the determination of the said appeal. This action was tried in March, 1857, before MR. JUSTICE WOODRUFF, without a jury. The plaintiff's counsel read, in evidence, a stipulation in the action, signed by the defendants' attorneys, which, exclusive of its title, and the signatures to it, is in these words, viz. "It is admitted that a judgment was rendered at special term of this Court, on the 4th of April, 1855, for $1,153 90 cents, against William H. De Groot and others, and that an appeal therefrom to the General Term was taken by the defendants therein, and that on such appeal, the defendants in this action executed and delivered the undertaking in the complaint men Burrall v. Vanderbilt. tioned, and on which this action is brought. That the appeal was abandoned by all the appellants, except De Groot, who prosecuted the appeal, and on the appeal, the judgment of the Special Term was affirmed by the General Term on the 23rd day of February, 1856, and judgment of affirmance with costs which were adjusted at Eighty-three Dollars, was on the 28th day of February, 1856, entered with the Clerk of this Court, and the judgment roll filed with him. That notice of the entry of such judgment of affirmance was served upon the defendants in this action, and demand of payment thereof made before this action was commenced. That this action was commenced by service of summons and complaint, on the 26th day of April, 1856." The plaintiff then rested. The defendants' counsel thereupon read in evidence a stipulation signed by the plaintiff's counsel, which, exclusive of its title, and the signatures to it, is in these words, viz. :— "The plaintiff stipulates to admit on the trial of this cause, that William H. De Groot appealed to the Court of Appeals from the judgment mentioned in the complaint in this cause, and perfected such appeal on the 9th day of June, 1856, and filed security to effect a stay of proceedings upon such judgment." It was also admitted, that the appeal therein mentioned is still pending, and that the answer in this action was served simultaneously with the notice of said appeal, on the 9th day of June, 1856. Said counsel also put in evidence from the records of this Court, produced by the Clerk, the following consent filed November 10, 1855, and order made by Mr. Justice Slosson, one of the Justices of this Court thereupon. It was admitted by defendants' counsel that the consent was all in the hand-writing of S. Sanxay, the attorney for De Groot, and that the order was entered by the counsel of De Groot, and that no copy of said order was served upon the plaintiff's attor neys. Such consent and order, exclusive of their titles, read thus: Burrall v. Vanderbilt. Whereas, judgment was rendered on the 4th day of April, 1855, in the above named Court, in favor of the above named respondent, for the sum of $1,153 90 cts., the same having been secured on appeal; it is hereby mutually agreed that an entry be made by the Clerk of this Court, on the docket of said judgment, that the same is secured on appeal," and that an order to that effect be granted. "November 7, 1855. "S. SANXAY, Attorney for De Groot. BURRILL, DAVISON & BURRILL, (ORDER OF Nov. 10, 1855.) "On reading and filing the consent on the part of the respective parties in this action, whereby it appears that the judgment for $1,153 90, recovered in this cause on the 4th day of April, 1855, has been secured on appeal, and on motion of C. N. Potter, of Counsel for the said defendant, De Groot; it is ordered that the docket of the judgment in this cause, and the docket of the transcript thereof in the office of the clerk of the City and County of New York, be on presentation of a certified copy of this order, marked 'secured on appeal' as by the statute provided." The judge before whom the action was tried, gave judgment for the plaintiff, and his statement of the facts found by him, and of his conclusion of law thereon, is as follows: "The facts as established by the evidence are "First. The same as are stated in the stipulation signed by the defendants' attorneys, herein before set forth; and also those stated in the stipulation read by the defendants' counsel. "Second. That on the 9th June, 1856, an appeal was taken by William H. De Groot from the said judgment of affirmance to the Court of Appeals, by the service of a notice of appeal and the giving the requisite security for a stay of proceedings upon the judgment appealed from, and that such notice of appeal was served simultaneously with the answer in this action, |