Burrall v. Vanderbilt.

"Third. That the attorney for the plaintiff, at the request of William H. De Groot, signed the consent, on which the order of the 10th November, 1855, was granted, and that such order was procured from one of the Justices of this Court, without any notice to or intelligence on the part of the plaintiff or his attorney, but on the application of the said De Groot and his counsel.

Fourth. That the docket of the original judgment in favor of the plaintiff against said De Groot, was marked "secured on appeal," and thereupon said De Groot conveyed a part of his real estate, which had theretofore been bound by the lien of said judgment, and on the 4th December, 1855, made a general assignment of all his real and personal property to trustees, for the benefit of his creditors. That on the 23d February, 1856, the docket of said judgment in the office of the Clerk of this Court, and of the Clerk of the city and county of New York, were marked thus, "Judgment affirmed, see Docket 28, February, 1856."

Fifth. That there is due to the plaintiff, on the cause of action stated in his complaint, the sum of $1,403 39, for which sum, with his costs, he is entitled to judgment.

The defendants duly excepted to the Court's conclusion of law. At the trial they moved a dismissal of the complaint, on the grounds on which they insisted, on the appeal, the judgment should be reversed, and excepted to the decision, denying such motion.

Judgment having been entered on the decision of the Judge, the defendants appealed from it to the General Term.

S. Sanxay, for defendants and appellants, insisted that each of the grounds of defence set up in their answer, was proved, and that each ground of defence is fatal to the plaintiff's right to

recover.

J. E. Burrill, for plaintiff and respondent.

BY THE COURT. PIERREPONT, J.-The counsel for the defendants claims that, because some of the original defendants abandoned the appeal, that the condition of the undertaking has not been broken.

Burrall v. Vanderbilt.

Section 282 of the Code provides, that "whenever an appeal from any judgment shall be pending, and the undertaking requisite to stay execution on such judgment shall have been given, and the appeal perfected as provided in the Code, the Court in which such judgment was recovered may, on special motion, after notice to the person owning the judgment, in such terms as they shall see fit, direct an entry to be made by the clerk on the docket of such judgment, that the same is 'secured on appeal,' and thereupon it shall cease, during the pending of the appeal, to be a lien on the real property of the judgment-debtor, as against purchasers and mortgagees in good faith."

If the condition of the undertaking is not broken for the reason that a part of the original defendants abandoned the appeal before judgment was affirmed, then all, save one, might abandon the appeal after the real estate of the judgment-debtor had been released, in the manner provided by the Code, and thus the Legislature would have contrived an ingenious method by which a judgment-debtor might clear his real estate of the lien of the judgment, sell the estate, and his sureties be released from all liability.

We think this objection is not well taken.*

The second objection is, that the plaintiff permitted the judg ment debtor to have entered on the docket, the words "secured on an appeal," without notice to the sureties.

The entry was made in obedience to an order of the Judge, granted upon application of the attorney of the defendant De Groot, he having obtained the consent of the plaintiff's attorney that such order be made; neither the plaintiff nor the sureties having had any knowledge of the consent.

The statute does not require notice to the sureties; it only requires notice to the person "owning the judgment.” (Livingston v. Roberts, 3 Abb. Pr. R. 231.)

* Although all of the appellants, except one, abandoned their appeal, yet it is not found that, as to them, the appeal was dismissed or discontinued. On the contrary, it is found that the judgment appealed from was affirmed: It may, perhaps, be said, and justly so, that it was affirmed as to all the defendants, and that the judg ment of affirmance is in the same form, and of the same effect, as if all the appellants had sought, on the argument of the appeal, a reversal of the judgment: And that this branch of the attempted defence is, therefore, disproved.-REP.

Burrall v. Vanderbilt.

When sureties join in an undertaking, they are presumed to know the legal effects of their act, and that one of those effects will probably be to release the real estate of the debtor from the lien of the judgment. In most cases that is one of the very objects for which the undertaking is executed.

We do not see that the plaintiff has done anything, in respect to the order, of which the defendant can reasonably complain.

The defendants' next objection is, that the judgment-debtor has appealed to the Court of Appeals from the judgment of this Court, and perfected his appeal.

This action was commenced on the 26th of April, 1856. On the 9th of June following, the defendant put in his answer, and at the same time served a notice of appeal to the Court of Appeals, from the original judgment, as affirmed by the General Term of this Court.

At the commencement of this suit, then, the plaintiff's cause of action was complete. If the appeal constitutes a defence, it has arisen subsequent to the commencement of the action.

The Code (sec. 339), like the Revised Statutes (2 R. S. 607), declares that a perfected appeal shall stay "all further proceedings in the Court below, upon the judgment appealed from, or the matter embraced therein" (except in certain special cases.) ·

The provisions of the Code in relation to appeals are the same as those of the Revised Statutes relating to appeals from orders and decrees of the Court of Chancery.

In Burr v. Burr (10 Paige, 169), the Chancellor held that an appeal, perfected after execution levied, did not stay the sheriff from proceeding on the execution, and terms were imposed as a condition to the order, staying proceedings; affirming the same construction previously given by him in the case of Clark v. Clark (7 Paige, 607).

In Cook v. Dickerson (1 Duer, 679), this Court held that a perfected appeal, under the Code, did not of itself stay an execution previously levied.

The case before us is not "a proceeding in the Court below upon the judgment." The suit upon the undertaking might have been brought in any Court of competent jurisdiction, as well as in the Court where the judgment had been rendered. The case of Thompson v. Blanchard (2 Comst. 561) differs widely

Considerant v. Brisbane.

from the one now under consideration, both in its facts and the principles involved.

The only question which this appeal brings before us is one of law; and we find no error in the decision of the Judge. We must, therefore, affirm the judgment, leaving the defendant to move for a stay of proceedings, or to make such other application to the Court, as he may be advised. Judgment affirmed, with costs.

CONSIDERANT v. BRISBANE.

When a Special Term order, which overrules a demurrer to the amended complaint, is, on appeal, reversed, and judgment is ordered in favor of the defendant, but leave is given, to the plaintiff, to amend his complaint, on paying the costs of the demurrer at Special Term, to be taxed, the defendant is entitled to a charge of $10, for proceedings before notice of trial, and a like charge, for proceedings after notice and before trial, although the same sum has been once paid, for the latter class of services, on sustaining a demurrer to the original complaint.

(At Special Term, March 19, 1858, Bosworth, J.)

EACH party moves to correct the clerk's adjustment of costs. The General Term reversed an order overruling a demurrer to the amended complaint, and gave judgment for the defendant, with liberty to the plaintiff to amend his complaint, on paying costs of the demurrer at Special Term to be taxed, and $10 costs of appeal: The clerk, in taxing the costs, allowed $10; costs of proceedings after notice of, and before trial, and disallowed a charge of $10, for proceedings before notice of trial, because the same item had been taxed, and paid by the plaintiff, on sustaining a demurrer to the original complaint. The defendant appeals from the disallowance of the item last named, and the plaintiff from the allowance of that first named.

BOSWORTH, J.-For the labor of examining the amended complaint, and determining the nature of the pleading, to be interposed by way of answer, and of drawing, copying, and serving it, and of other proceedings before notice of trial, it is as just to allow $10 as for performing similar services, in relation

Duigan v. Hogan.

to the original complaint. Allowing it, is not paying for the same services twice: The services are, as truly, separate, and different, as if performed in different actions.

For like reasons, the item of $10, for proceedings subsequent to notice of, and before trial, was properly allowed. As to this item, the taxation is confirmed, and the item of $10, for proceedings before notice of trial, must also be allowed. The rejection of it was erroneous. A different rule may be applicable when there has been but one actual trial, as in Perry v. Livingston, 6 How. Pr. R. 404, and Jackson v. McBurney, id. 408:—In the present case, there have been two actual trials, of issues at law, one upon a demurrer to the original complaint, and the other upon a demurrer to an amended complaint. Both items are allowable.

JAMES J. DUIGAN, Plaintiff and Respondent, v. ROBERT HOGAN, Appellant.

The 47th section of the Act relating to summary proceedings by a landlord to recover possession from a tenant holding over after non-payment of rent (2 Rev. Stat. p. 516), is not repealed by the Code.

A Court of Equity, after proceedings have been had, under that act, before a magistrate, for the dispossession of the tenant, and a warrant has been issued, has no power to interfere, by injunction, to prevent the execution of the warrant, on the ground that the tenant has a claim against the landlord for damages for breach of his covenant to repair, exceeding the amount of the rent in arrear.

If the magistrate errs in awarding such warrant, his determination may be reviewed in the manner prescribed by the statute, and if the proceedings be reversed or quashed, the tenant has his remedy by action for the damages caused by the dispossession.

When there is no charge of insolvency of the landlord, the tenant, having a claim for damages, or any cause of action against him, which cannot be used to defeat the proceedings before the magistrate, should pay his rent and prosecute such cause of action, and this will presumptively give him a full remedy, without the interference of a Court of Equity, by injunction, to stay the execution of a warrant of dispossession.

(Before BOSWORTH, HOFFMAN, SLOSSON, WOODRUFF, and PIERREPONT, J.J.) Heard, May 15; decided, May 29, 1858.

THIS is an appeal by the defendant, from an order at Special Term, granting an injunction.