ORCHARD v. BINNINGER

ORCHARD against BINNINGER. . New York Common Pleas, Special Term; August, 1868. Security upon Appeal.—Discharging Lien of Judgment Pending an Appeal. , An application by a judgment debtor to have his real property exonerated from the lien of the judgment, pending an appeal on which he has given security, is addressed to the discretion of the court, and this discretion is to be carefully exercised for the protection of the creditor. In this case the court required the execution of a specific lien upon real estate of sufficient value to cover the plaintiff’s demand. Motion to have judgment docket marked “ secured on appeal.” This action was brought by Samuel Orchard against Abraham M. Binninger, Dexter B. Britton and James E. Brown. The case was tried in January, 1864, and a verdict rendered for the plaintiffs, upon which judgment was duly entered February 2, 1864, for $17,093.55. The' defendant now moved to have the docket of the judgment marked “secured on appeal.” In support of this motion he showed by affidavits of D. B. Britton, one of the defendants, that judgment was obtained against the defendants Binninger and Britton (Brown not being served with process), and docketed February 2, 1864; that the appeal was taken and perfected, and requisite security given to stay execution ; that the sureties on the undertaking were Clark C. Wilson and John S. Christie, who justified ; that the defendant is worth $50,000 and over; that Binninger is possessed of large wealth; that exceptions hereunto have been recently settled, and that the appeal is still pending, but has not been argued; that Binninger is absent from the city, and that an application for a loan of money upon the premises on which the said judgment stands as an apparent lien is now delayed by reason of the omission to have the judgment docket marked secured on appeal. The affidavit of Wilson was also read, in which he stated that he owned $36,000 worth of real estate; and the affidavit of Christie, the other surety, was also produced, which stated that the deponent, was worth $10,000 in real estate and $36,000 over and above his liabilities. The affidavit of Luther R. Marsh, read in opposition, alleged that the defendant appealed from the said judgment February 20, 1864, notice of appeal being duly served on the plaintiff; that the proposed case was served and service of amendments returned; that the case and amendments were submitted to Judge Daly for settlement; but he refused to settle them on the ground that the original request to charge, with his rulings thereupon on the margin, were not furnished.—that he had been unable to procure it from defendants’ attorney or stenographer; and at last, after four years from the time of submission of the case and amendments, Judge Daly directed notice for application for settlement to be given to the defendants’ attorney for April 29,1868. At such time the missing document was furnished,—and although four and a half years have elapsed from entry of judgment herein, the deponent had not been able to procure argument at general term of appeal from said judgment. The lien of said judgment will expire in about five and a half years more, and before the cause could be heard in the court of appeals, even if appeal should be taken at once; and that the lien would therefore be of no practical security to plaintiff, but he would be obliged to rely upon present security of the defendant and his sureties eight or nine years hence. Marsh, Coe & Wallis, for the plaintiff. S. E. Church, for the defendant. [MAJORITY — Brady, J.] Brady, J. The judgment obtained in this action, with accumulations of interest, amounts to a sum exceeding $20,000. The sureties on the appeal to this court justify in $36,000, which is not double the amount of the judgment and interest; and the defendant Britton swears that lie is worth $50,000 over and above all his debts ; and that the defendant Binninger is “possessed of large wealth.” This would seem to be ample security for the judgment, but the defendants will be enabled to sell all their real estate, if - the judgment be marked secured on appeal, and an ordinary business vicissitude would sweep away the balance of their estate. The latter observation applies to the sureties, who are gentlemen engaged in mercantile pursuits, and subject to the revolutions in trade and fluctuations in values which absorb large sums of money. It cannot be said that substituting such securities for liens upon real estate gives perfect security to the judgment creditors, which is the design of the law; and, unless the substituted security approximates to the one existing, it ought not to be accepted. The legislature intended, it is true, that the appellant should have all the advantages of an appeal which would be a presentation to and consideration of his case by the full bench in all the courts by which it could be heard, and immunity from the burden of the judgment ad interim ; but they left the latter advantage to the discretion of the courts, inasmuch as the payment of the judgment might be jeopardized unless such discretion was carefully exercised for the protection of the creditor. There is greater safety in a multitude of sureties, considering the vast changes of fortune which distinguish business life, and that multitude approximates more to the value of a lien on real estate than a few sureties. The doctrine of chances is decidedly in favor of a creditor who has seve: al sureties for his claim. The order to be made, therefore, on the motion, will be:— Motion granted, on the defendants furnishing two sure-reties who will justify in $30,000 each, in addition to those who have signed the undertaking, upon executing a specific lien upon them real estate, or having a specific lien executed on real estate sufficient in value,—that is $30,000, —to protect the plaintiffs to the amount of them claim, and interest and costs.