Long v. American Sur. Co
| Decision Date | 21 May 1895 |
| Citation | 146 N.Y. 251,40 N.E. 730 |
| Parties | FOO LONG v. AMERICAN SURETY CO. |
| Court | New York Court of Appeals Court of Appeals |
OPINION TEXT STARTS HERE
Appeal from supreme court, general term, First department.
Action by Foo Long against the American Surety Company on an appeal bond. From a judgment of the general term (27 N. Y. Supp. 743), affirming a judgment for defendant at the circuit, and an order denying a new trial, plaintiff appeals. Affirmed.
The plaintiff, Foo Long, recovered a judgment against Chu Fong at a trial at circuit on the 28th of June, 1888, for the sum of $3,798.99. The defendant therein appealed to the general term, and on the appeal the defendant in this action became the surety for the defendant. The undertaking subscribed by the defendant was in the form prescribed by the Code, by which it undertook and agreed that the appellant will pay all costs and damages which may be awarded against him on the appeal, not exceeding $500; and also if the judgment appealed from, or any part thereof, be affirmed, or the appeal be dismissed, the appellant would pay the sum directed to be paid by the judgment, or the part thereof as to which the judgment should be affirmed. The general term, after argument, reversed the judgment recovered by the plaintiff at the circuit, and granted a new trial, and the order of reversal was entered July 9, 1889. In September following the plaintiff appealed from the order of reversal, and for a new trial to the court of appeals, and a return was made to that court, and the appeal noticed for argument and placed on the calendar; but several months before it would have been reached in due course a stipulation was made between the parties to the action and their attorneys, by which it was consented that a judgment should be entered reversing the judgment and order of the general term, and affirming absolutely the judgment of the circuit. This consent was brought to the attention of the court of appeals, and on the 12th of January, 1891, the court, on reading and filing the stipulation, adjudged, without any argument or consideration of the appeal on the merits, that the judgment and order of the general term should be and the same was reversed, and that the judgment of the court on the verdict should be and the same was affirmed absolutely. The usual remittitur was sent down, and judgment was entered in the supreme court in accordance therewith. This action was subsequently brought by the plaintiff against the present defendant on the undertaking given on the appeal to the general term. The defendant put in issue its liability on the undertaking, and on the trial the judge directed a verdict for the defendant on the ground that no breach of its conditions had been shown, and that the reversal of the order of the general term, by consent, and the judgment of affirmance entered on the remittitur of the original judgment, was not an affirmance, within the true meaning of the bond. Judgment was entered in accordance with the decision at the circuit, which was affirmed by the general term, and from such affirmance the plaintiff appeals to this court. Other facts are stated in the opinion.
Chas. J. Buchanan, for appellant.
S. B. Brownell, for respondent.
The undertaking bound the surety in case of the ultimate affirmance of the judgment. Its liability was not terminated by the reversal of the judgment by the general term, but continued and was enforceable in case, on appeal to this court, the order of the general term should be reversed and the original judgment affirmed. Robinson v. Plimpton, 25 N. Y. 484. The only question presented by this record is whether the original judgment was affirmed, within the true intent and meaning of the undertaking. The plaintiff, Foo Long, appealed to this court from the order of the general term reversing the judgment against Chu Fong in his favor and granting a new trial, giving the usual stipulation. This court, by its judgment and order, entered January 12, 1891, reversed the order and judgment of the general term, and affirmed the original judgment. The judgment recited that it was entered upon the stipulation of the parties to the appeal. It appears that the stipulation was made by the parties and their attorneys, and upon filing the stipulation, and upon application to the court made before the case was reached on the calendar, the court, without argument or consideration of the case upon its merits, directed...
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...of the appeal without a hearing was for the entry of a different judgment than the one appealed from. Foo Long v. American Surety Co., 146 N. Y. 251, 40 N. E. 730, is also relied on by the defendant. In that case, where the stipulation in the Court of Appeals was for a judgment reversing th......
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United States Fidelity & Guaranty Co. v. Clifton
...of the surety, that the surety was thereby discharged. In the opinion, which was by the Court of Appeals of New York, reported in 146 N. Y. 251, 40 N. E. 730, in disposing of the case, among other things, the following was "The judgment and decision of the appellate court, in due course on ......
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...does not discharge the surety on an appeal bond if the higher court subsequently reverses the intermediate court. Foo Long v. American Surety Co., 146 N.Y. 251, 40 N.E. 730; Robinson v. Plimpton, 25 N.Y. 484; Doolittle v. Dininny, 31 N.Y. 350, 353; Humerton v. Hay, 65 N.Y. 380.' Consolidate......
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...the stipulation disposing of the appeal without a hearing was for the entry of a different judgment than the one appealed from. Long v. American, 146 N. Y. 251, is also relied on by defendant. In that case the stipulation in the court of appeals was for a judgment reversing the decision of ......