Church v. . Simmons
New York Court of Appeals
Appeal from judgment of the General Term of the Supreme Court, in the third judicial department, entered upon an order made November 26, 1879, reversing in part a judgment in favor of plaintiff, entered upon the report of a referee. (Reported below, 19 Hun, 220.) This action was brought upon an undertaking signed by defendant Witbeck as principal and defendant Simmons as surety. The nature of the undertaking and the material facts appear in the opinion.
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Appeal from judgment of the General Term of the Supreme Court, in the third judicial department, entered upon an order made November 26, 1879, reversing in part a judgment in favor of plaintiff, entered upon the report of a referee. (Reported below, 19 Hun, 220.) This action was brought upon an undertaking signed by defendant Witbeck as principal and defendant Simmons as surety. The nature of the undertaking and the material facts appear in the opinion. Defendant’s liability extended to the final determination of the action. (Robinson v. Plympton, 25 N. Y. 484; Drummond v. Russo, 4 Kern. 60,…
1Opinion of the CourtAndrews, J.
The undertaking upon which the action is brought was executed on the appeal by the defendant Witbeek to the General Term, from a judgment for the recovery of the possession of real property" rendered in favor of the plaintiff, for the purpose of staying the execution of the judgment pending the appeal, and is in the form prescribed by section 338 of the old Code. The undertaking contains, among the other provisions prescribed, a provision that “ during the possession of such property by the appellant, he will not commit, or suffer to be committed, any waste thereon.” The judgment appealed…
2Cases cited4 opinions
- Gates v. . McKeeNew York Court of Appeals · 1855
- Hinckley v. . KreitzNew York Court of Appeals · 1874
- Schroeppell v. . ShawNew York Court of Appeals · 1850
- Gracie v. New-York InsuranceNew York Supreme Court · 1816
3Cited by3 opinions
- Christal v. . KellyNew York Court of Appeals · 1882
- Penny v. RichardsonSupreme Court of Oklahoma · 1902
- Mackellar v. FarrellThe Superior Court of the City of New York and Buffalo · 1890