Manning v. Gould. appeal to the general term of the supreme court or of a superior city court, when excepted to, and they fail or refuse to justify, and justification is not waived by the respondent, are, nevertheless, bound by the conditions of their undertaking. This depends upon the construction to be placed upon sections 1352 and 1335 of the Code. Security is not required to perfect an appeal to the general term from a final judgment rendered in the same court, but such appeal does not stay proceedings upon the judgment, and the party having the judgment may proceed to enforce it as if no appeal had been taken.* If the appellant desires to stay the execution of the judgment pending the appeal, section 1352 of the Code requires that he must give the security required to perfect an appeal to the court of appeals. Upon giving such security, the execution of the judgment appealed from is stayed as upon an appeal to the court of appeals, and subject to the same conditions. Section 1335 of the Code provides, that it is not necessary that an undertaking upon an appeal to the court of appeals should be approved, but the attorney for the respondent may, within ten days after service of a copy of the undertaking, except to the sufficiency of the sureties. Within ten days thereafter, the sureties, or other sureties in a new undertaking to the same effect, must justify before a judge of the court below, or a county judge. If the judge, after examination of the sureties, finds them sufficient, he must indorse his allowance of them upon the undertaking or a copy thereof. The section then declares: "The effect of a failure so to justify, and to procure an allowance, is the same, as if the undertaking had not been given." The meaning of this language is too obvious to admit of doubt. Failure of the sureties to an undertaking *Section 1351. Manning v. Gould. upon an appeal, to justify, when excepted to, defeats entirely the object and purpose of the undertaking. Where security is required in order to perfect the appeal, the appeal from the judgment is not perfected, and the party having the judgment may proceed thereon as if no appeal had been taken. Where security is not required to perfect the appeal, but is required to stay the execution of the judgment, the judgment may be enforced, pending the appeal, as if no undertaking to stay the execution thereof had been given. So much is clear. The remaining question to be considered is, whether the respondent may insist upon his right to disregard the appeal or the stay of proceedings, as the case may be, because of the failure of the sureties to justify; and, at the same time, hold the sureties upon their undertaking. We think not. Upon the service of a notice of appeal with an undertaking, the respondent may accept the undertaking, and thereupon it becomes effectual, and the sureties will be bound. But he may say, "I will not accept the sureties tendered by the undertaking, except upon condition that they appear before a judge, are examined as to their responsibility, and the judge approves them after such examination." Thereupon, the appellant may undertake to meet this condition, and give notice of justification of the sureties, or he may tender other sureties in a new undertaking to the same effect, who must justify before a judge of the court below or a county judge. If he does neither, then the case stands as if no attempt to give an undertaking had been made. No reason can be suggested why the respondent should be permitted to disregard the undertaking and proceed upon the judgment as if none had been given, and yet have all the advantages that the undertaking was intended to secure. The only object and purpose of the undertaking was to stay the execu Manning v. Gould. tion of the judgment until the appeal had been heard and determined. The respondent cannot have the dual right to enforce the judgment pending the appeal, as if no undertaking had been given, and, at the same time, treat it as valid security for the payment of the judgment. The undertaking was tendered by the appellant and rejected by the respondent, and never perfected by the appellant. It is unnecessary to determine whether or not the exceptant might have waived her exception at any time before the refusal of the sureties to justify. No waiver in this case was made or attempted. We have carefully examined the numerous authorities cited by the respondent, and none of them are in conflict with the conclusion reached in this case. The case of Decker v. Anderson (39 Barb. 346), arose on an undertaking given upon the bringing of an action to recover possession of personal property, under the Code. The cases are not analogous. In an undertaking given in an action of replevin, the sureties being approved by the sheriff, he is required to take the property of the defendant, and becomes liable to the defendant therefor in case the sureties fail to justify, if excepted to. In such a case, it would be unreasonable to hold that, after the defendant's property has been taken upon the faith of the undertaking, the sureties could relieve themselves from liability by refusing to justify when excepted to. Besides, the Code does not declare that the effect of a failure so to justify is the same as if no undertaking had been given. On the contrary, the effect of a failure to justify is to subject the sheriff to liability to the defendant for the property taken. Ballard v. Ballard (18 N. Y. 491), simply decides that an exception duly taken to sureties on appeal is waived by the failure of the respondent to attend the officer before whom the notice of justification is given, although the sureties also fail to attend. It holds, that the party Manning v. Gould. excepting is the actor in the proceeding, and no step is necessary to be taken except upon his requisition. The question involved in the case of Gibbons v. Berhard (3 Bosw. 635), was one of pleading. It was there held, that a complaint upon an undertaking, executed upon an appeal to the court of appeals, sufficient in other respects, is not demurrable as not stating facts sufficient to constitute a cause of action, merely because it omits to aver that the undertaking was accompanied by the affidavits of the sureties that they were worth double the sum specified therein. Such affidavit was intended for the protection of the respondent, and it was competent for him to waive it. In Hill v. Burke (62 N. Y. 111), the respondent accepted the undertaking, and never excepted to the sureties. The only defect the sureties claimed was that they did not originally justify in a sufficiently large amount. Knapp v. Anderson (7 Hun, 295, aff'd,71 N. Y. 466), decides nothing, except that the discharge of the judgment debtor in bankruptcy did not discharge his sureties. The case of McSpedon v. Bouton (5 Daly, 30), was an action brought upon an undertaking given upon an appeal to the court of appeals. Although no such defense was set up in the answer, proof was given upon the trial that the respondent excepted to the sureties; and that after repeated attendance by the respondents on notice for their justification, and their failure to attend and justify, the proceedings for justification were abandoned without formal order, and the appeal proceeded, and was regularly heard and disposed of in the court of appeals. Judge ROBINSON held that the failure of the sureties to justify constituted no defense, and cited Decker v. Anderson, 39 Barb. 346. But that case, as we have already seen, did not arise upon an undertaking given upon an appeal, and cannot be considered an authority upon the question now before the court. Knowlton v. Bannigan. We think the court was misled by the supposed analogy of this case. Furthermore, the language of the Code, under which the undertaking was given in that case, is not the same as the present Code. The intent of the legislature to make the effect of a failure to justify and to procure an allowance the same as if an undertaking had not been given, is more strongly expressed in the present Code than it was in section 334 of the old Code. The sureties were not bound, and the judgment of the general and special terms must be reversed, and a new trial granted, costs to abide the event. All concurred. KNOWLTON ET AL. v. BANNIGAN. N. Y. SUPERIOR COURT, SPECIAL TERM; OCTOBER, 1882. § 872. Examination of witness not a party, before trial.-What are the "special circumstances" which will justify order for.- Must be an allegation that examination is to be used upon trial.—What is not equivalent to such an allegation. The "special circumstances" which will justify an order for the examination of a witness not a party to the action, before trial, under subdivision 5 of section 872 of the Code, are circumstances of the same general nature as those mentioned in said subdivision (viz., "that the person to be examined is about to depart from the State; or that he is so sick or infirm, as to afford reasonable ground to believe that he will not be able to attend the trial"). There must, in the superior court, be an allegation that the moving party intends to use the examination upon the trial of the action; and an allegation that the examination is necessary for the prosecution of the action is not sufficient to sustain the order, on the ground that it appears that the examination is to be so used. Motion to vacate an order for the examination of a witness not a party to the action, before trial. |