In my opinion the plaintiff showed at the circuit a right to recover in this action against the defendants, the sureties to the undertaking, the amount of the judgment of August 13, 1860, with interest. The words of the undertaking are, that they “ will pay all costs and damages which may be awarded against them (the appellants) on said appeal, not exceeding $250, and do also undertake that if the judgment so appealed from, or any part thereof, be affirmed, the said appellants will pay the amount directed to be paid by the said judgment, or the part of such amount as to which the judgment shall be affirmed,” &c.
It is impossible to say that the judgment of the 13th of August, 1860, so appealed from, was not affirmed, absolutely affirmed, by the general term. In my opinion it is a misapplication of words to say that the leave given by the order of affirmance, for the defendants to answer in twenty days, qualified the affirmance, or made it conditional. The judgment of the special term on the demurrer was absolutely affirmed by the general term, but the general term gave the *453defendants leave to answer; and that is all there really is of the general term order of affirmance. In drawing the general term order, the word except was inadvertently and inappropriately used instead of the word but, and thus came the doubt about the construction of the order. The leave to answer cannot properly be said to be an exception to, or qualification of the affirmance of the judgment of the special term.
[New York General, Term, May 2, 1864.Ho doubt the leave given to answer, by the order of affirmance, was in effect a stay of all proceedings on the judgment affirmed till the time to answer expired, and if an answer was put in, till the trial and determination of the issues; and upon the second judgment being obtained, the plaintiff in the judgments had no right to collect both judgments; he was not entitled to double satisfaction; and probably the defendants in this action, the sureties in the undertaking, upon showing that the amount of the judgment of August 13,1860, affirmed by the general term, could probably be collected by execution issued on either of the judgments, could have obtained an order staying all proceedings in this action on the undertaking, till such an effort had been made, to collect of their principals. But as no such stay had been obtained, and this action came on for trial on the naked issues between the parties, it appears to me that it is impossible to say that the plaintiff had not a technical right to recover the amount of the judgment of August 13,1860, so affirmed by the general term.
In my opinion he was not entitled to recover the costs of the plaintiff in the judgment on the appeal, adjusted it seems at $111.04, because no costs were awarded against the appellants by the general term on the “ said appealf’ but by the general term order, the costs of the appeal were to abide the event of the action.
The judgment should be reversed, with costs to abide the. event of the action.
Judgment affirmed.
Leonard, Clerke and Sutherland, Justices.]