A judgment was recovered by plaintiff, in. the City Court of Brooktyn, against Lewis Beach; on the 2d day of October, 1872, for $527 96, which, on an appeal to the general term of that court, was affirmed by judgment finally entered May 15, 1875, with $131 66 costs of affirmance.
These defendants became sureties in an undertaking' given for the purposes of that appeal. The decision on such appeal appears by an order to that effect, dated April 28,, 1875, incorporated in the judgment roll and signed with the initials “ G. G. R.,” presumably those of Judge Reynolds, of that court, and also by the initials “ G. W. K.,” presumably those of George W. Knaebel, its clerk, but the costs were not taxed nor was the judgment perfected until May 15th, 1875. The undertaking contained the provisions required, by sections 354, 355 and 356 of the Code, relating to appeals to a. County Court from justices of the peace, or to this court from judgments of District Courts, instead of such as were required on appeals from such a judgment to the general term of the City Court of Brooklyn, by sec. 6, of chapter 470, of the Laws of 1870, assimilating such an appeal in all respects to that provided for m sections 348, 349 and 350 (chap. 4, tit. 11) of the Code, wherein provision is made for a stay of proceedings upon the order or judg
On the trial, the only notice which the plaintiff proved to have been served on his behalf, was a paper purporting to be a copy of the order signed by Judge Reynolds and the clerk, with their initials, before mentioned, but without any copy of said initials or any • indication that any such order had been previously signed or any notice of its ever-having been entered with the clerk of the court. The requirement of the entry of an order made upon any decision of a judge or court before any effect can be given to it is, under our system, a matter of substantial significance, and where granted by a judge in any judicial district, must be entered with the clerk of the county in which the trial is to be had or the judgment roll to be filed. And in this respect the final entry of an order upon the decision of a judge or court, however otherwise formal, becomes a matter of materiality. It was to such an “ entry ’’ of an order of affirm
The notices required by the Code are always such as <eiust be given in writing (sec. 408), and must be so explicit as plainly to give the information required by the statute. The paper served in this case of what was or was to be in terms an order of the general term, was without any indication of signature of judge or clerk, and with a mere indorsement of the title of the cause, followed by these words: “ Copy order affirming judgment. To Diefendorf & Beach, attorneys for appellant; Brainard- and Rice, attorneys for respondent.” It conveyed no proper intimation that anyr such order had been entered with the clerk of the court.
But notwithstanding such a written decision of the gen-, -eral term may have been entered with the clerk, it did not Become a judgment of affirmance, and no such judgment had Been perfected so as to become the subject of further appeal, .as contemplated by the provisions of the Code above referred to, at the time of serving such.papers styled “ copy order.”
The amendment to section 348 of the Code by the act of 1862, while providing that no action should be commenced upon any undertaking given in pursuance of the provisions of that section, until ten days after the service of notice of the entry of the order or judgment affirming the judgment appealed from, had in contemplation, in addition to
The 349th section, giving such right of an appeal from orders, provides they may be taken “ in like manner and with like effect,” as from judgments, as allowed by section 348. 'The manifest intention of the amendment of 1862 above referred to, passed-after the other provisions of sections 348 and 349 had gone into effect, and allowing appeals in common from judgments and orders, “ in like manner and with like effect,” must be taken distributively as requiring the notice of ten days to be given before suit brought on the undertaking in case of the affirmance of an order as well as upon the affirmance of a judgment. The object of the notice in either case, is to enable the principal debtor to protect his sureties, either by a further appeal to the Court of Appeals, or to provide for payment, before suit brought upon the undertaking, or to afford time to take some measures for their relief.
The decision upon the appeal taken by Beach, the principal, could in no way be effectually decided or disposed of by an “ order,” but only by a judgment of affirmance, duly perfected.
An order is but a decision upon a motion, and is expressly distinguished from a judgment (Code, sec. 400), which is defined (Code, sec. 245) as the final determination ■of the rights of the parties. A judgment is to be entered in the judgment book and perfected by the filing of a judgment roll (sections 280 and 281), from which the right of appeal from a judgment would begin to run (sec. 331). No notice of the judgment so perfected on May 15th, 1875, on the appeal in question, was ever served. The requirements of the statute (Code, sec. 348) are on this subject in terms
Larremore and Joseph F. Daly, JJ., concurred.
Judgment reversed, and new trial ordered, with costs to abide event.
After the foregoing decision, there was a new trial, on which the plaintiff attempted to show in the various ways, stated in the following opinion, a waiver of the notice. The defendants had judgment and the plaintiff appealed to the general term, where the following opinion was delivered on ‘ January 7th, 1878.
The appeal was argued by
Kdwin T. Bice, for appellant.
B. F. Lee, for respondent Wm. N. Beach.
Certain of the facts of this case are recited in the opinions rendered at general term, March 5th, 1877, in this cause. The law of the case upon those facts must be considered as settled, so far as this court is concerned, by the former decision. That disposes of all questions as to the sufficiency of the notice given by the service of a copy -of the order of April 28th, 1875, as a compliance with section 348 of the Code, requiring, as a condition precedent to the •commencement of an action against sureties on an undertaking on appeal, the service, on the adverse party of notice •of entry of the order, or judgment affirming the judgment appealed from (Code of Procedure, sec. 348; Porter v. Kingsbury, 71 N. Y. 588). The question as to the language of the Code requiring service of the “ order ” or judgment appealed from was also disposed of by the general term decision, and cannot be now discussed.
Upon the new trial, at special term, plaintiff relied upon a waiver of the notice required by section 348. Also, upon the fact that the sureties, when demand was made of them, did not base their refusal to pay upon the want of service of notice. As” pro of under the first of these points, plaintiff had no direct waiver of notice to show, but offered proof that, after entry of judgment of affirmance, the defendant, on that judgment, without waiting to receive notice of such entry, moved the court in which the judgment was entered for a ■ certificate authorizing him to appeal therefrom to the Court of Appeals (L. 1871, c. 282, § 8). This proof was excluded by the court, and properly. The notice required by section 348 is a step toward enforcing the liability of sureties, not toward limiting or extending the time or right to appeal, and proceedings looking to an appeal by the adverse party, without Avaiting to receive such notice, cannot be held,with any shadow of reason, to intend or to amount to a waiver of a notice designed for a totally different object. The last point made on
The judgment should be affirmed, with costs.
Charles P. Daly, Ch. J. and Yah Hoeseh, J., concurred.
Judgment affirmed.*
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This decision was affirmed by the Court of Appeals, February 4th, 187ft