Poppenhusen v. Seeley
New York Supreme Court
HIS action was brought against the sureties on an undertaking given on appeal to the general term of this court from a judgment rendered at special term, in favor of the plaintiff, on the ground of the frivolousness of the demurrer to the complaint.
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HIS action was brought against the sureties on an undertaking given on appeal to the general term of this court from a judgment rendered at special term, in favor of the plaintiff, on the ground of the frivolousness of the demurrer to the complaint. The undertaking was in conformity with the provisions of sections 334 and 335 of the code; and by its terms the sureties undertook that the appellants would pay all costs and damages which might be awarded against them on said appeal, not exceeding $250, and also the judgment appealed from, if the same should he affirmed. On the hearing of said…
1Opinion of the CourtLeonard, P. J.
Although there was an order of the general term affirming the judgment of August 13, 1860, no judgment of affirmance could be entered, if the defendants in that judgment availed themselves of the leave to answer contained in and forming a part of the said order. When those defendants answered, a, new issue, differing in its character and mode of trial from that upon which the prior judgment had been entered, was formed, and the right to enter a judgment of affirmance, or to issue an execution on any judgment of affirmance, was forever gone. The plaintiff must have the right to enter and…
2Cited by3 opinions
- Railsback v. GreveIndiana Supreme Court · 1874
- Lowry v. TewNew York Supreme Court · 1881
- Sheldon v. SabinNew York Court of Common Pleas · 1883