Oliver Porter, Appellant, v. Augustus W. Kingsbury et al., Respondents

Oliver Porter, Appellant, v. Augustus W. Kingsbury et al., Respondents. A complaint in an action upon an undertaking on appeal given in pursuance of section 34S of the old Code, which fails to allege “ service of notice on the adverse party of the entry of the order or judgment affirming the judgment appealed from,” ten days before the commencement of the action, is defective ; the notice is a condition precedent to the commencement of the action, and in the absence of the allegation the complaint does not state a cause of action. (Submitted September 20, 1877; decided October 2, 1877.) This was an action upon an undertaking given on appeal under section 348 of the Code. (Reported below, 5 Hun, 597.) The complaint alleged the recovery of a judgment in the Supreme Court by p " itiff herein, on appeal therefrom to the General Term and the giving of the undertaking in suit, a reversal of the judgment by the General Term, an appeal by plaintiff to the Court of Appeals, where the order of General Term was reversed and the judgment appealed from affirmed. It also alleged the filing of the remittitur and entry of judgment thereon, the issuing of execution and return thereof unsatisfied. It did not allege generally or specifically a compliance with the provision of section 348 of the old Code, which prohibits the commencement of an action upon an undertaking given in pursuance of it, “until ten days after service of notice upon the adverse party of the entry of the order or judgment affirming the judgment appealed from.” Defendants demurred upon the ground that the complaint did not state a cause of action. Meld, as above9 and that the demurrer was properly sustained. A. Porter, for appellant. M. M. Waters, for respondents. [MAJORITY — Earl, J.,] Earl, J., reads for affirmance. All concur. Judgment affirmed.