Skidmore v. Davies

3 Sarat. Ch. Sent. 61

Opinion

This case" came before chancellor upon appeal from two separate and distinct orders or decisions of the surrogate of the city and county of New-York. The surrogate having removed the appellant Skid-Carthew, 248. 3 Wend. Rep. 55.) If the appellant, there” fore, does not succeed in his appeal, the condition of the appeal bond is broken. And in addition to the costs of the respondent, the statute authorizes this court, upon affirming the decree or order appealed from, or upon the appeal being discontinued or quashed, to award damages to him for the delay and vexation which has been caused by the appeal. (2 R. S. 618, § 35.) The sureties in the appeal bond, therefore, may be liable for the amount of such damages, in addition to the costs of the appeal. And as the statute requires a bond with sureties in the penalty of at least one hundred dollars upon an appeal from an order or decree of a surrogate, the appellant cannot deprive the respondent of the benefit of full security upon the appeal from each distinct order or decree of the surrogate, by including two or more of them in one appeal, and giving a bond in the penalty of $100 only. In a case like the present, therefore, the surrogate was not authorized to take an appeal bond in a penalty which was less than two hundred dollars.

The appeal must therefore be dismissed with costs.