The plaintiff recovered a judgment in the sum of $6,500 against Arthur Aldrich for damages caused by negligence. An appeal was taken from that judgment. The appellant could not stay the execution of the judgment without "a written undertaking to the effect that if the judgment * * * appealed from * * * is affirmed, or the appeal is dismissed, he will pay the sum recovered or directed to be paid by the judgment." (Civ. Pr. Act, § 594.) The undertaking on appeal recites that the "plaintiff has agreed to a stay of execution of said judgment upon the filing of an undertaking in the sum of Five Thousand Dollars," and provides that the United States Casualty Company does "undertake that the appellant will pay all costs and damages which may be awarded against the appellant on said appeal, not exceeding Five Hundred Dollars, and does also undertake, in the sum of Five Thousand Dollars, that if the judgment or order so appealed from, or any part thereof, is affirmed, or the appeal is dismissed, the appellant will pay the sum recovered or directed to be paid by the judgment * * * in all not to exceed said sum of Five Thousand Dollars."
The judgment in plaintiff's favor against Aldrich has been affirmed. At the time of the accident the United *Page 326 States Casualty Company had issued to Aldrich a policy, insuring him against liability for damages in the amount of $5,000. Under the terms of that policy the plaintiff, upon the return of execution unsatisfied, had the right to maintain an action against the casualty company to recover "the amount of the judgment * * * not exceeding the amount of the policy." The casualty company paid to the plaintiff the amount of the policy, viz., $5,000, together with the costs of the action. The plaintiff then began this action against the casualty company to recover the sum of $1,500, viz., the excess of the amount of the judgment in the negligence action over the amount of the policy.
The defendant maintains that its obligation upon the undertaking on appeal is no wider than its obligation under the policy of insurance which it had previously issued; that both are limited to $5,000, and that both are completely met when that amount has been paid upon the judgment. Doubtless the defendant's obligation upon its undertaking is defined solely by the language of the bond. It cannot be extended by the court to afford the plaintiff the protection which she probably supposed she was receiving, if the defendant did not agree to give such protection. The problem is whether the defendant's undertaking is only that $5,000 shall be paid upon the judgment, or whether it undertook that the judgment should be paid but limited its own liability to the sum of $5,000.
The same problem was presented under analogous conditions inShapiro v. Equitable Casualty Surety Co. (256 N.Y. 341,345). There the bond recited that it was "conditioned to secure payment of $2,500 upon judgments" and it provided that the surety undertook "that the appellant will pay such judgments * * * not exceeding, however, the sum of $2,500 * * * and does also undertake that if the judgments so appealed from * * * are affirmed * * * the appellant will pay *Page 327 the sum recovered * * * up to the amount mentioned herein." A majority of the court concluded that the undertaking of the surety was only that the appellant will pay "up to" the sum of $2,500, and that the bond was, as it stated, conditioned to secure the payment of $2,500 on the judgments. When that payment was made by the appellant the condition was met, and no action could be maintained on the bonds.
In that case we pointed out that the problem would be different if the surety had "undertaken that the principal would pay the judgment but limited its liability to $2,500." Here, as we have pointed out, the recital in the undertaking is that the plaintiff has "agreed to a stay of execution of said judgment upon the filing of an undertaking in the sum of Five Thousand Dollars," not, as in Shapiro v. Equitable Casualty Surety Co., that the undertaking is conditioned to secure the payment of that sumupon the judgment. From the recital in the bond it is evident that the parties intended that the usual appeal bond required by section 594 of the Civil Practice Act should be filed in order to obtain a stay of execution, except that the liability of the surety might be limited. Again, the contractual parts of the bond, fairly construed, carry out that intent. The surety company undertakes that the appellant will pay all costs and damages awarded against the appellant on the appeal not exceeding $500. That is the statutory undertaking to perfect the appeal. Then "italso undertakes in the sum of $5,000" that "the appellant will pay the sum recovered," and the limitation "in all not to exceed the sum of Five Thousand Dollars" is to be construed merely as a limitation of the amount which the surety company may be called upon to pay under both parts of its undertaking.
Thus here we have a limitation only upon the amount of thedefendant's liability under its bond if the judgment is not paid; while in the earlier case the limitation is upon the amount which the surety undertakes the appellant *Page 328 will pay. In that case the condition was met by the payment of the amount secured; in this case the condition is breached by failure of the appellant to pay the amount recovered. The judgment in this case is in accordance with our decision in the earlier case. The basis of that decision is wanting here, and we pointed out in our earlier decision the distinction which dictates the judgment granted here against the defendant.
The judgment should be affirmed, with costs.