Mills v. Forbes

12 How. Pr. 466

• Court: New York Court of Common Pleas
• Decided: June 15, 1856
• Docket: No. 12
• Status: Published

Opinion

Brady, Judge.

The Code (§ 339) provides that when an appeal is perfected, as provided by §§ 335, 336, 337 and-338, the court may, in its discretion, dispense with or limit- the security to be given by §§ 335, 336 and 338, where the appellant is an executor, &c.; and thus, in effect, absolve the executor from the obligation to give security on an appeal, where a good reason is assigned by him for such indulgence. It is true that the section referred to relates to appeals to the court of appeals; but § 348 provides that, on an appeal to the general term, no stay is perfected unless security be given, as upon an appeal to the court of appeals, or the court so order upon such terms, as to security or otherwise, as may be just—such security not to exceed the amount required on an appeal to the court of appeals.

A statement of a want of assets sufficient to pay the judgment, would, no doubt, be regarded as a good reason why the security should be limited, at least to the amount of assets disclosed, applicable to the payment of the judgment appealed from.

The object of the legislature, in my opinion, was to provide for just such a case as this, and to prevent the appellant executor from avoiding his bond by assuming, in the absence of the power of the court, to limit his security; that the legislature never designed that he should pay the judgment without regard to assets in his hands. They have, by §§ 339 and 348, provided against that, and thus silenced him in that respect.

I think the manner in which the judgment is to be paid, does not affect .the primary liability of the sureties to the undertaking, although a compliance with the judgment, in manner and and form expressed, may discharge them from all obligation. And a defence, alleging the application of all the property of the testator, as directed by the judgment, would be good, I think, although such property was, in fact, insufficient to discharge the judgment, and for the reason that the sureties undertake that the appellant will pay the judgment pronounced, or affirmed by the appellate court, and cannot be called upon to do more than their principal was by such judgment ordered to perform. But upon demurrer such a view of the question cannot' be available. Giving an undertaking, without application to the court as to security, and demurring, are admissions of the possession of assets sufficient to pay the judgment in the manner directed, and entitles the plaintiff to judgment.

I consider all the facts necessary to establish the defendant’s liability, alleged in the complaint, and that the demurrer is not well interposed. The defendants, however, have leave to answer in twenty days, on payment of costs.

Ordered accordingly.