In October, 1872, the plaintiff recovered a judgment against one Lewis Beach, in the Brooklyn City Court. The defendants appealed from this judgment to the General Term, having previously caused the undertaking upon which this action is brought to be executed and filed in the office of the clerk of the city court, and the judgment of the trial court was there affirmed, upon the appeal. The complaint alleges that, by the judgment of the General Term, the judgment appealed from was, by order, entered April 28, 1875, in all things affirmed, and that a copy of the order of affirmance was served on the appellant, on April 29, 1875; but there is no averment that any notice of the judgment was served within ten days prior to the commencement of the action, as required by section 348 of the Old Code of Procedure. This action was brought upon the undertaking, in the month of July, 1876.
The most important question upon this appeal is whether the action can be maintained, without service, before the commencement of the same, of a written notice of the entry of the order or of the judgment affirming the judgment appealed from, under § 348 of the Code. Upon the trial, the evidence showed that the judgment was entered on the 15th day of May, 1875. No notice of the entry of the judgment was ever served; and the only proof of service was a paper produced by the defendant, in the former action, pursuant to notice, which was marked as received by his attorneys, on the 29th of April, 1875, which purported to be a copy of an order made at General Term, on the 28th of April, 1875, by which the judgment entered in the case was affirmed, with costs. There was no evidence of the approval of a judge or clerk of the original order. On the back of the order thus served was indorsed the title of the case and the words "copy order affirming judgment," and it was directed to the attorneys of the appellant in that *Page 167 action; and the name of the respondent's attorney was also on the paper. There was nothing in the paper described which contained any intimation that the order had been entered with the clerk; and the judgment-roll, which is produced upon the trial, contains the original order, with the initials of the judge and clerk, and does not purport to have been filed at any time prior to the entry of the judgment; but it appears that the judgment was entered on the 15th of May, 1875, which was some time after the service of the alleged copy order upon the defendant's attorney, in the action then pending. The evidence does not show that the order was entered on the 28th of April, or prior to the entry of the judgment. Nor does the extract from the rough minutes of the General Term, bearing date April 28, 1875, to the effect that the judgment was affirmed, furnish any evidence of the entry of the order, or judgment of affirmance. It merely shows that the court had decided the case; and it remained for the prevailing party to prepare the order and enter up the judgment, at such time as he should desire. The presumption is, in the absence of proof, and without any notice to that effect, that the order was neither filed nor entered until the judgment-roll containing the same was filed and the judgment was docketed. And the service of the copy order alone, as the case stands, could not be notice of its entry, even if the notice might, under some circumstances, be dispensed with.
The facts referred to fail to establish a service of the notice required; and until this is done, no recovery can be had. The omission, in this respect, was not a mere irregularity which might be corrected, but a neglect to comply with the requirement of a statutory enactment, which was vital and absolutely essential, as a matter of substance preliminary to an action upon the undertaking. The service of a notice, in conformity with the provision of the Code cited, was a condition precedent, and must be alleged and proven, in order to maintain the action; and until this is done, no cause of action had accrued. This doctrine was distinctly held *Page 168 by this court in Porter v. Kingsbury, 71 N.Y., 588. The service of a copy of the order, therefore, was not sufficient for any purpose, and does not show even a partial compliance with the law.
Section 348 of the Code relates to the service of a notice "of the entry of the order or judgment affirming the judgment." While there are strong reasons in favor of the position that this enactment was intended to provide for a notice of the entry of the judgment, where a judgment was actually obtained, we think it is not very material whether the notice required related to an order or a judgment, as no notice whatever was given of either of these, in the case at bar. It is not important, therefore, to determine whether the section last cited was designed to include orders appealed from which are embraced in section 349. Nor is there any valid ground for claiming that any of the letters of the defendant, in the original action, introduced in evidence upon the trial, proved that he had received the notice required by the statute. No act of the defendant, in that action, could affect the rights of the sureties, without their knowledge or assent to the same. (Wood v. Fisk, 63 N.Y., 250, 251.)
The letter of Brainard Rice, the plaintiff's attorneys, of November 22, 1875, to the defendants in this action, was also insufficient, as it did not contain the notice required by section 348. It gave no notice of the entry of the judgment, and does not state the clerk's office in which the judgment was entered. These were fatal defects. (Valton v. TheN.L.F.L.A.S., 19 How., 515) The sending of the letter from Brainard Rice to the defendant Harteau is not the service required by the Code (§§ 408, 409); and the statement made in Harteau's letter of November 30, 1875, that he had handed to Lewis Beach the letter to him, is not evidence nor sufficient proof of service of notice on Lewis Beach, even if the notice contained all that was required by law.
There is no ground for holding that the defendants were liable as principals, or by reason of any indemnity held by *Page 169 Lewis Beach. The proof on this subject is not clear. But, aside from this, it is enough to say, that the action is brought against them as sureties; and, in such a case, as the pleadings stand, the plaintiff can only recover on that ground. The defendants did not waive service of notice, by not pleading in their answers that it was not served. (Selover v. Coe,63 N Y, 438, 443.) Although they might have demurred to the complaint, their rights were not affected by interposing an answer. The contract of suretyship is one of the strictest character, and to be so construed. The principal is not an agent, who can bind the surety. (Hatch v. Elkins, 65 N.Y., 496.)
There is no merit in the point taken, that the defendants have waived their defense because, when called upon, they based their refusal to pay upon other grounds than those taken on the trial. We think that there is no rule of law which sustains such a doctrine, in an action against sureties in an undertaking. If it could be invoked in any such case, the sureties would not be bound to interpose an objection, of which they had no knowledge at the time; and the party seeking to enforce such a rule should, at least, show knowledge of the defendant, in order to make it available. There was no error in the ruling of the court, as to the evidence offered by the plaintiff upon the trial, nor in the dismissal of the complaint.
After a careful consideration of all the questions presented, we think that no error is manifest, and that the judgment was right, and should be affirmed.
All concur.
Judgment affirmed. *Page 170