ONDERDONK a. EMMONS

ONDERDONK a. EMMONS. New York Common Pleas; General Term, July, 1859. Undertaking on Appeal prom District Court to New York Common Pleas. An undertaking on appeal given under section 354 of the Code, to pay in case of affirmance, all costs, extra costs, and disbursements awarded against the appellant in the court below, together with all costs and damages that might be awarded against him upon the appeal, does not bind the sureties for the payment of the damages recovered by the judgment appealed from. The “ damages” intended by section 354, are such sum as the appellate court may award the respondent in addition to the judgment appealed from, and beyond the costs of appeal. . Appeal from a judgment of the district court of the fifth judicial district of the city of New York. The action was brought on an undertaking executed by the defendants as sureties for one Trask, on an appeal taken by Trask to the New York Common Pleas, from a judgment recovered against him by the plaintiff in this action, in a former action in a district court. The undertaking produced on the trial was executed on the 4th of August, 1858. It recited the recovery of the judgment against Trask for $225 damages, and $5 costs, and the intention of Trask to appeal to the Common Pleas; and continued as follows: “ Now, therefore, we, W. F. Trask,” &c., “ and James Emmons,” &c., “ and George Kuhn,” &c., “ do hereby,' pursuant to the statute in such case made and provided, undertake that the said appellant will pay all costs, disbursements, and extra costs awarded against him in the court below, if such judgment shall be affirmed by the appellate court on such appeal. Together with all costs and damages which may be awarded against him thereon.” The plaintiff also proved the record of judgment on the appeal affirming the judgment against Trask, recovered in the court below, for the sum of $245.16. The defendants contended that the undertaking bound the sureties only for the costs, extra costs, and disbursements in the court below, and the costs of appeal, and not for the amount of the judgment. The justice gave judgment, however, for the plaintiff for the amount claimed, and twelve dollars costs, the plaintiff having appeared by an attorney of the Supreme Court. The defendants appealed to the Common Pleas. Thomas W. Smith, for the appellants. I. The undertaking proved by the plaintiff is not made in conformity with the statute, and creates no liability against the appellants. II. Their liability, if any, is limited, under section 858 of the Code as amended in 1858, to the payment of the costs and disbursements awarded in the court below, viz.: $5, with the costs and damages (being the disbursements) which may be awarded against the appellant by the appellate court on affirmance of the judgment, viz.: $15, amounting in the aggregate to $20, for which amount the appellants on the trial offered to allow judgment, and to pay. III. It is only when security is given to stay execution as provided by section 356, that the undertaking renders the sureties liable for the entire judgment. S. Jones, for the respondents. I. If the appellant’s construction of section 354 be correct, then it will readily be perceived by a comparison of sections 354 and 356 that a respondent could not in any event get security for his judgment below, for by section 356 the sureties are only liable for the amount unsatisfied upon an execution issued on the judgment of the appellate court. 1. Sections 356 and 310 clearly contemplate the appellate court giving judgment against the appellant for damages to the amount of the judgment below. And where there is no express statutory enactment to the contrary, it will be implied that the court has power to do that which is requisite to give vitality to another provision of statute. 2. This court, then, on appeal having, by the law as it existed previous to the amendment, authority to give judgment for damages against the appellant to the amount of the judgment below, or of such part thereof as to which the same shall be affirmed, and having no authority to give any other or different damages, it necessarily follows that the Legislature, in using the words “ damages awarded against him on appeal,” in an act subsequently passed in reference to such previous law, had reference to, and intended such damages as the court were authorized to give by the previous law. It may be urged as an argument against the above construction, that it would require two Undertakings to the same matter. Kot so; because, if the above reasoning is correct, then the undertaking under section 354 would substantially comply with the provisions of section 356, and would secure to the respondent all the law designed for him, and would consequently be a good undertaking under section 356. (Coleman a. Rowe, 4 Sme. & M., 747; Smith a. Norval, 2 Code R., 14.) Therefore, in this view, but one undertaking would be required. If the above reasoning be incorrect, then the judgment below is not secured in any shape whatever, either by the undertaking under section 354, or by that under section 356. Therefore, the undertaking under section 356 would in this view be security only for the costs of appeal; but these costs are undoubtedly secured by the undertaking under section 354. This objection, then, being just as forcible against the construction contended for by appellant, as against that contended for by respondent, loses all weight as an argument against either the one construction or the other. II. Section 354 gives the appellant the option either to deposit the costs, disbursements, and extra costs of the court below, and $15 to meet the costs (not damaged) awarded against him on appeal, or to give an undertaking to secure them with the damages. Kow as the appellate court upon affirmance, in whole or in part, has the right to award damages to the amount of so much of the judgment below as they shall affirm, it follows that the undertaking under section 354 embodying substantially all the requisites of section 356, operates as a stay of execution. It was consequently intended that the option should be exercised thus; if the appellant, at the time of taking the appeal, desired a stay, he was to give the undertaking required by section 354, in lieu of all other undertakings. If he did not then desire a stay, he merely made a deposit; and as section 354 requires the undertaking mentioned in it to be given at the time of taking the appeal, sections 355 and 356 were retained to provide for the case where the appellant at the time of taking the appeal did not desire a stay, but afterwards, before the decision of the appeal, did desire a stay. [MAJORITY — By the Court.—Daly, F. J.] By the Court.—Daly, F. J. This judgment was erroneous. Before the amendment of 1858, no undertaking was necessary upon an appeal, unless the appellant desired a stay of execution, nor would an appeal stay execution, unless an undertaking was given pursuant to section 356. (Conway a. Hitchins, 9 Barb., 378.) By the amendment of 1858, it was declared that an appeal should be ineffectual, unless the appellant deposited with the clerk of this court the costs, disbursements, and extra costs embraced in the judgment appealed from, together with $15 to-meet any costs that might be awarded against him, in this court, upon the appeal, or if such deposit was not made, unless he should execute an undertaking to the effect that he would, in the event of the affirmance of the judgment by the court, pay all costs, disbursements, and extra costs that had been awarded against him in the court below, together with all costs and damages that might be awarded against him upon the appeal in this court. The object of this provision is very plain. Before its enactment, the prevailing party in the court below, had no security for the costs incurred by the appeal, but was left to collect them by an execution issued upon the judgment of affirmance in this court. If an undertaking was given to stay execution, that undertaking covered t(iem, as the sureties undertook to pay any amount remaining unsatisfied upon the return of an execution, issued upon a judgment rendered against him, but unless there was such an undertaking, they were not secured to the party who had recovered the judgment in the court below. He might go on and collect the judgment in the court below, and if it was afterwards reversed, the appellate court would order him to restore what he had collected, with interest from the time of payment or collection. This provision for an undertaking or a deposit, to render the appeal in any case effectual, is a security not only for the costs upon the appeal, but also for costs and disbursements, incurred in obtaining the judgment in the court below. It does not operate as a stay of execution, for sections 355 and 356 were left unchanged when this amendment was made, and they declare that if the appellant desire a stay of execution, he shall give the undertaking provided for in section 356. It is fair to assume that if it was the intention of the Legislature that the new undertaking should he a substitute for the former one, and should operate as a stay of proceedings, that they would have repealed the two sections referred to, but as they suffered them to remain, we must take the three sections together, and taking them together, it is observable that the two undertakings differ. In the new one, the liability of the sureties is fixed for the costs, disbursements, and extra costs in the court below, and the costs and damages awarded against the appellant, upon the appeal, the moment the judgment is affirmed. In the other or former undertaking, the sureties are not liable, unless an execution upon a judgment entered against the appellant is returned unsatisfied, when they are liable for the amount which may remain unsatisfied. In- one case the return of an execution is essential before they can be charged. In the other their undertaking or promises is qualified by no such condition. As there is this difference, then, and as section 355 is imperative that the undertaking provided for in section 356, must be given to stay execution, it seems to follow that the new undertaking, ¡provided for in the amendment of section 354, was designed to be a distinct and different undertaking, and not intended as a substitute for the other. * As the new undertaking must be given to render the appeal effectual in any case, and the other if the appellant wishes to stay the execution, it is necessary to ascertain the exact extent and scope of the two instruments. As respects the former one, there is no difficulty, as it covers any amount unsatisfied, after the return of an execution upon a judgment entered against the appellant. As it stays the issuing of an execution upon the judgment below, or all further proceedings, if one has been issued, thus preventing a return until the judgment of the appellate court has been given (Smith a. Allen, 2 E. D. Smith, 259), it embraces whatever is included in the judgment below, or which may remain due after the return of the execution, which has been issued upon it. The new undertaking, however, extends only to the costs, disbursements, and extra costs which form a part of the judgment in the court below, and the costs and damages awarded against the appellate, upon the affirmanee of the judgment by the court. If the judgment is simply affirmed, costs are and must be awarded to the respondent (Logue a. Grillick, 1 E. D. Smith, 398), and they are collectable by an execution issued upon the judgment of the appellate court, or may now be obtained by an action upon the new undertaking, which the appellant is in every case required to give. If no undertaking has been given to stay execution under sections 355 and 356, the respondent proceeds and enforces his judgment by execution in the court below, and if one has been given, the stay is at an end, upon the affirmance of the judgment by the court, and he is then at liberty to proceed with his execution in the court below, and enforce that judgment. The costs awarded to him upon the appeal, he obtains by an execution in the court, or by an action against the sureties, who have become bound for their payment. But this new undertaking embraces, also, damages which may be awarded against the appellate upon the affirmance of the judgment, and it appears in this case that the judgment entered in this court upon the affirmance of the judgment of the court below, after reciting that the respondent recovered judgment in the court below for $230 damages and costs, and that the judgment so recovered was duly affirmed by this court at general term ; then declares that it is adjudged that the appellant do recover $230, the amount of said judgment, together with fifteen dollars and sixteen cents, for the costs and disbursements upon the appeal, amounting in the whole to $215.16. It is insisted that there is an award of $230 damages against the appellant upon the affirmance of the judgment, which is embraced in the undertaking given by the defendants, under section 351. I do not so regard it. This is simply a judgment of affirmance. It appears that the general term merely affirmed the judgment of the court below, which would not authorize an execution to be issued in this court, upon the judgment to enforce the payment of any sum but the $15.16 costs and disbursements upon the appeal. For all that appears in this case, the judgment below may have been paid and satisfied before it was affirmed. But we are asked, what is meant, in this new undertaking, by damages which may be awarded against the appellant -upon the affirmance of the judgment, the answer to which is that there may be cases in which it is necessary, and in which this court is empowered to render judgment against the appellant, to be enforced as a judgment of this court, for a sum beyond the costs of the appeal, as for instance under section 370, where, if a recovery be had by one party, and costs be awarded to the other, we are required, as the appellate court, to set off the one against the other, and render judgment for the balance, which would necessarily be enforced as a judgment of this court, and if the balance was against the appellant, it would, in the language of this new undertaking, be an awarding of damages against him upon appeal. All that the plaintiff could recover below was $20.16. That is $5 for the costs, disbursements, and extra costs, included in the judgment below, and $15.16 costs of the appeal. For that amount the judgment should be affirmed, and reversed as to the residue. Beady and Hilton, JJ., concurred. Judgment accordingly.