Heebner a. Townsend.

tion is a satisfaction of the judgment (Ex parte, Lawrence, 4 Cow., 417), but as between the parties to the judgment, the mere levy is not a satisfaction; and the defendants in this action as sureties for the judgment debtor on his appeal, cannot be third parties.

The appeal to the general term did not supersede the execution and levy, though it probably stayed all further proceeding under the execution during the pendency of the appeal. (Code, $339; Cook a. Dickerson, 1 Duer, 679; Smith a. Allen, 2 E. D. Smith's C. P. R., 259.)

If as between the parties to the judgment, the levy was a satisfaction of the judgment, then there was no judgment to appeal from; and the appeal being for the benefit of the judgment debtor, certainly neither he, nor his sureties on the appeal, can set up that the levy was a satisfaction of the judgment.

The undertaking of the defendants was an independent absolute undertaking, that the appellant would pay all damages which might be awarded against him on the appeal, and if the judgment appealed from, or any part thereof should be affirmed, then that the appellant would pay the amount directed to be paid by the judgment, or the part of such judgment as to which the said judgment should be affirmed, if affirmed only in part. The undertaking may be considered as additional and collateral security for the payment of the judgment required by the statute to be given as a condition of staying the execution of the judgment during the pendency of the appeal. If the judgment be affirmed, and the appellant does not pay it, and his sureties do pay it, they would be entitled to enforce any lien of the judgment or previous levy of an execution for their indemnity; but the undertaking is an absolute undertaking, that the appellant will pay the judgment if it be affirmed, and by its terms precludes the idea that the judgment creditor must first exhaust his remedy under the judgment and, execution, before he can resort to his action on the undertaking.

I think, therefore, that the first matter set up in the answer as a defence, is not a defence to this action, and that so far the demurrer is well taken.

As to the second matter set up by the answer, to wit, that the plaintiff has never made a demand of payment of the defendants, or either of them, it is also unavailable as a defence.

Heebner a. Townsend.

This action is a demand. Notice of the affirmance of the judgment by the general term or of the appellant's default in not paying on such affirmance, and demand of payment of the defendants, are not alleged in the complaint, and were not necessary to give the plaintiff a right of action against the defendants on their undertaking. The undertaking does not in terms call for such notice or demand, but is an absolute guarantee that the appellant will pay, &c. The fact of the affirmance of the judgment was as open to the inquiry or knowledge of the defendants, as of either of the parties to the judgment; and they were obliged to take notice of the default of the appellant, as it could have been ascertained by inquiry. As a general rule, no notice or demand is necessary where one guarantees the act of another, unless the contract requires it. The notice required between endorsees and endorsers of bills of exchange and promissory notes is an exception founded on mercantile usage. (Douglas a. Howland, 24 Wend., 49; Berks a. Tippet, 1 Sandf., 32; Brookbank a. Taylor, Cro. Jac., 685.)

As to the third defence set up in the answer-that the judg ment debtor hath appealed from the judgment to the Court of Appeals, and hath perfected his appeal-it does not appear when he so appealed, nor does it appear from the answer whether such appeal was perfected before or after this action was brought. If after, it is very clear that such appeal could not affect the plaintiff's right of action at the time he commenced this action; and even if the appeal was perfected before the commencement of the action, I do not see how the defendants can set it up as a defence to the action. The fact of the appeal to the Court of Appeals, might, on the application of the defendants, authorize a stay of proceedings in this action, or upon any judgment therein against them, until the determination of such appeal; but I do not see how they can plead such appeal in bar of the plaintiff's right of action on their undertaking, even if the appeal was perfected before the action was commenced.

Their undertaking was, that if the judgment was affirmed, then that the appellant would pay, not the amount directed to be paid by the appellate court, but by the judgment appealed from; and their answer alleges not that the appellant did pay, but that he appealed.

The perfecting the appeal to the Court of Appeals stayed all

New York and New Haven Railroad Company a. Schuyler.

further proceedings in the court below on the judgment appealed from, or upon the matter embraced therein; but this action on the undertaking is not a proceeding on the judgment, or upon any matter embraced therein, but is a proceeding upon an independent collateral instrument or matter.

Most of the questions raised by the demurrer in this case were passed upon by the Superior Court in Burrall a. Vanderbilt (6 Abbotts' Pr. R., 70), and I see no reason for dissenting from the views taken by the court in that case.

The plaintiff must have judgment on the demurrer with costs, without prejudice to the right of the defendants to move for a stay of proceedings during the pendency of any appeal to the Court of Appeals taken and perfected by Samuel P. Townsend.

NEW YORK AND NEW HAVEN RAILROAD COMPANY a. SCHUYLER.

Supreme Court, First District; Special Term, February, 1859. DECISION ON DEMURRER.-PARTIES.-ENJOINING PROCEEDINGS IN ANOTHER COURT.

In reversing judgment for the defendant upon demurrer to the complaint, the Court of Appeals appeared, so far as the opinion rendered by them discussed the questions raised, to have overruled the demurrer on deciding merely one of the grounds stated in it.

Held, on demurrer of another defendant, that they must be deemed to have considered and passed upon the other grounds of demurrer as well as the one discussed in the opinion, and that the court below were bound by the decision to treat all the grounds of demurrer as insufficient.

In an action by a corporation whose agents have issued spurious stock, brought against the holders of such stock, and seeking to have the same declared void, the holders of genuine stock are not proper parties.

The rule that one court should not restrain the proceedings of another of coordinate jurisdiction, does not apply to prevent a plaintiff from seeking in one action to restrain the defendants from prosecuting several actions relating to the same subject-matter, some of which actions are pending in other court. All may be restrained in one action brought in either court.

New York and New Haven Railroad Company a. Schuyler.

Demurrer to complaint.

demurrer of Further facts

The decision of the Court of Appeals on the parties in this cause is reported 7 Ante, 41. necessary to the understanding of the case are stated in the opinion.

INGRAHAM, J.-The demurrer argued in this case contains the same grounds of demurrer as were presented to the court in the demurrer of the defendant Cross. Upon the argument of that demurrer, the judge at special term sustained the demurrer, and upon appeal to the general term, the judgment below was af firmed. When the case was submitted to the Court of Appeals the judgment below were reversed. I concede that in the opinion delivered on that occasion, the court appear to have decided solely the question of multifariousness, which was much pressed before all the courts, but it is impossible for me to say that they did not consider the other points submitted to them as stated in the demurrer. On the contrary, I am bound to suppose that they would not have reversed a judgment in the defendant's favor on the demurrer, although the court might have erred on the question of misjoinder of different causes of action, if they had not been satisfied that the complaint contained a good cause of action against the defendant Cross. It would be improper for a judge of this court, in reference to a decision of the Court of Appeals, to say that because certain points taken in a demurrer had not been sufficiently argued before that court, or noticed by the justice delivering the opinion there, he would decide adversely to that decision, and send the case up again for that court to have the case more fully argued and to compel them again to review those questions with more care. It is our duty to recognize and to follow the decisions of that court, and on all questions which have been presented to the court we should adopt their decisions as binding and conclusive.

I feel, therefore, constrained to decide, that upon the questions presented by these demurrers in the case of Chappel and of Carpenter, and most of the questions presented by the other demurrers, I can only follow the decision of the Court of Appeals, by holding that the complaint contains a sufficient cause

New York and New Haven Railroad Company a. Schuyler.

of action, and none of those grounds are sufficient to warrant a judgment in the defendant's favor.

The other grounds taken by the demurrer I do not on examination think to be well founded. An objection is taken in some of the demurrers to the defect of parties defendants, in that the holders of the real stock are not made parties. I see no necessity to make such persons defendants. The action is not commenced to interfere with their stock. They are not required to prove the validity of the stock held by them, as it is admitted by the plaintiffs; and an averment in the complaint that they held the real stock, making them defendants on that account, would be objectionable, as showing no cause of action against them.

If in the progress of the cause any other person should be found to hold the false stock, the plaintiffs can be required to make them defendants, but not for the cause that they hold the real stock of the company.

Another ground of demurrer stated on behalf of the Mechanics' Bank is, that the action brought by them, and which is sought to be restrained in this action, was brought in another court, and that the remedy should be in that court.

Conceding that rule to be proper, if the bank were the only defendants, it does not apply here.

On examining the complaint, it will be seen that some of the actions are brought in this court, and some in the Superior Court. It would be proper in such cases, where all the defendants must be included in one action, to bring such action in either court, and from the necessity of the case either court could enjoin the judgments pending in both courts. Any other rule would enable one defendant to defeat the whole proceeding.

The case of The Farmers' and Mechanics' Bank of Kent County a. The Butchers' and Drovers' Bank (16 N. Y. R., 125), is relied upon as showing that the Court of Appeals, by that decision, have thrown so much doubt over the decision made in this case on the demurrer of Cross, as to justify us in refusing to regard that decision as an authority in the plaintiff's favor.

There is between that case and the present one a marked distinction, viz.: that the court there thought the check sued upon was negotiable, and the rules as applicable to negotiable paper would not be applicable to certificates of stock in an incorporated company.

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