The undertaking of the defendant was that if, on the appeal of Ballard to the Cortland County Court from the judgment rendered against him by the Justice's Court "judgment be rendered against the said appellant on said appeal, and execution thereon be returned unsatisfied in whole or in part, I will pay the amount unsatisfied." This was the undertaking required by statute to be given on such an appeal, and adding the words "on said appeal" to the words "judgment be rendered against said appellant" was nothing more than the statute plainly implied, for it was only the judgment which should be rendered against the appellant which the surety undertook in any event to pay. In this case, by law, the appeal made a new trial in the County Court a matter of necessity, and it is obvious that the undertaking had reference to a judgment rendered against *Page 383 the appellant on the new trial in the County Court. It appears also to be settled that the judgment which the surety undertakes to pay is the one finally rendered against the appellant on the appeal. (Smith v. Crouse, 24 Barb., 433; Gardner v.Barney, 24 How. Pr., 467; Robinson v. Plimpton,25 N.Y., 484.) The circumstance that the final trial of the case on the appeal was had in the Supreme Court, does not affect the question, as it was transferred to that court for trial in pursuance of a statute by reason of the disqualification of the county judge of Cortland county. It was the same case tried in pursuance of law on the same appeal, and came within both the letter and spirit of the undertaking. The execution and levy on the judgment first recovered in the County Court cannot aid the defendant, for that judgment was reversed in the Supreme Court, and as a matter of course the execution and levy fell with it, and there was no breach of the undertaking given by Lathrop and Quail on the appeal to the General Term of the Supreme Court, which resulted in the reversal above referred to, and it cannot be said to have been given to supersede the undertaking given by the defendant on the appeal to the County Court. If the judgment of the County Court had been affirmed on the appeal to the Supreme Court, a different question might have arisen. No notice of the judgment, execution or return was required to be given before suit brought. The defendant became liable when the judgment was finally recovered against the appellant, and an execution thereon returned unsatisfied and the return of the sheriff made without collusion or fraud is conclusive, and cannot be contradicted in this action by evidence tending to show that the defendant named in it had property, out of which it might have been satisfied.
It thus appears that there was no defence to the plaintiff's action, and the judgment of the Supreme Court must be affirmed, with costs.