Ninth Avenue Railroad v. N. Y. Elevated Railroad , 3 Abb. N. Cas. 22 ( 1877 )

J. F. Daly, J.

The sureties, by the terms of their undertaking, are liable “if this court shall finally decide that the plaintiff was not entitled to the injunction.” The special term so decided, and the general term affirmed the judgment of the special term. An appeal to the court of appeals has been perfected by plaintiff. Otherwise the condition of the undertaking would seem to have been fully satisfied by the decision of our general term, and defendants would seem to be entitled to their order for assessment of damages, without being compelled to await the result of the appeal to the court of last resort. But the decision of the court of appeals, when the remittitur is sent down, is made and entered as the judgment of this court, in fact and effect, and when an appeal is taken to the court of appeals, should be deemed to be the final decision intended by the undertaking of the sureties.

Motion denied. No costs.