The defendants’ counsel insists that the costs upon the trial before the referee, $238.31, in the case of Moore v. Hamilton, cannot be recovered in an action upon the undertaking given by the the defendants and upon which this action is brought.
In this position I think the counsel is wrong, and that the undertaking in suit covers and includes the costs in question. It was given upon the appeal from the general term to the court of appeals, in accordance with section 335 and section 338 of the Code. The judgment was in part for the payment of money, and the undertaking provides in the language of section 335, “that if the judgment appealed from or any part thereof be affirmed the defendant will pay the amount directed to be paid by the judgment,” etc. The judgment appealed from was the judgment affirming the referee’s decision, and the amount included in that was the costs of the trial as well as of the appeal. It was, in fact, but one judgment, although the costs of the appeal were entered separately on the original judgment roll in continuation of the same. Eno v. Crook, 6 How. 462.
I think the costs of trial before the referee were covered by the undertaking andaré within the meaning of the same. This view of the subject is also sustained by the fact that under section 339 of the Code the undertaking operated as a stay of proceedings. This could not have been intended unless security was given for the final payment of the judgment upon its affirmance on appeal. The object of the undertaking is to procure an absolute stay of execution and of all proceedings in the judgment, and such is its effect. Seacord v. Morgan, 3 Keyes, 640. It would be in contravention of this intention, to hold that the undertaking did not include the costs in question.
The learned counsel for the defendants claims, that the under*242taking given upon the appeal to the general term, being under section 334 and section 338 of the Code, did not prevent the issuing of an execution for the $238.31, or operate as a stay in this respect, and, therefore, that sum is not covered by the undertaking upon which this action is brought. I think that this construction is erroneous, and that the affirmance of the judgment by the court of appeals is an affirmance of the entire judgment which must include the costs in question.
The defendant’s counsel also insists, that the fifty dollars paid on the general term undertaking for the use of the premises during the time of the appeal from the special to the general term should have been deducted, although the undertaking upon which this action was. brought provides for the payment of the value of the use and occupation of the property “from the time of the first appeal.” I am inclined to think that as this sum was proved to have been paid and the referee has found that it was paid upon the undertaking on the appeal to the general term, and as the notice of motion to fix the amount and the order fixing the same was for the use of the premises during the appeal to the court of appeals, that the fifty dollars was properly disallowed. That such was the intention is also proved by the notice of motion, for leave to file a new undertaking and the order thereupon, which provided for the value from the time of the appeal. The undertaking, therefore, contained more than was required or authorized, either by law or the' orders referred to, and the referee properly held that the plaintiffs were entitled to recover for the full amount named,therein..
There was no error in any of the rulings of the referee, and the judgment entered upon his report must be affirmed, with costs.
Judgment affirmed.