26 A.D. 202 | N.Y. App. Div. | 1898
The defendants, as sureties for certain persons who were about to sue out a warrant of attachment against one Buchner, executed the usual undertaking upon attachment; which was delivered to Buchner at the time of the execution of the warrant. The attachment having been vacated, the plaintiff, to whom the undertaking and the right of action thereon had been assigned, brought this action to recover the damages suffered by.Buchner by reason of the attachment. The defendants sought to set off against this cause of action a counterclaim, which will be more particularly referred to hereafter \ but they were not permitted to do so for the reason that the action upon the undertaking was held not to be an action upon contract, and for that reason it was determined by the learned court that a counterclaim upon contract could not be set off against it.
The first question presented upon this appeal, therefore, is as to the nature of the obligation assumed by the defendants when they executed the undertaking upon the attachment.. It was a voluntary agreement upon their part by which they assumed a liability to the effect that the plaintiffs in the attachment suit would pay all the costs which might be awarded to the defendant therein and the damages which he might sustain on account of the attachment. By reason of this undertaking on their part the law implied an agreement that they would pay these costs and damages if the plaintiffs in the original action did not do so. This undertaking, to be sure, did not run in terms to any particular person; but it was given to the defendant in that action, and it was understood at the time of its execution that it would be given to him and that it was for his benefit, and the agreement necessarily to be implied from it was that the defendants in this action would pay to him such costs and damages. Such an agreement is, in all its essential elements, a contract; and upon no other theory can any liability upon the part of the defendants who executed the undertaking be sustained. To make a contract it is not necessaiy that there should be an express promise; nor is it necessary that any particular person should be stated as the one to whom the promise is implied. It is sufficient if the circumstances are such that the law creates a duty on the part of the one sought to be charged to pay money or to do any other act — as to pay the amount of a judgment against him, or on the part of one
In the cases cited above the action was based upon one of the conditions just referred to; but in each ease it was held to he an'action upon contract, and such is the undoubted construction in such cases. The law which permits a counterclaim to be set up in an action on contract does not require that the contract, which lies at the foundation of the action, should be a perfect formal contract; but it includes an action arising from a transaction by reason of which the law implies a contract liability. In each one of the cases cited above a counterclaim upon contract was permitted to be interposed, although the cause of action in each cáse was one in which the circumstances were such that the law implied an agreement, although in neither of them was any agreement actually made. We have spoken of these elementary rules because the question whether an action upon an undertaking of this kind is one upon contract, so that a counterclaim can be interposed in the action, seems to have been denied, in one case at least, in this State. (Furber v. McCarthy, 54 Hun, 435.) But numerous other cases in this State may be cited holding the contrary of this proposition,' and the case itself, we think, is not correctly decided. (Delaney v. Miller. 78 Hun, 18; Atwater v. Spader, 12 N. Y. St. Repr. 506; Cornell v. Donovan, 14 Daly, 295; Wickham v. Weil, 17 N. Y. Supp. 518.) The court was clearly wrong, therefore, in holding that a counterclaim upon contract could not be interposed, in this action.
But the judgment is sought to be .sustained because it is said that the claim, which the defendants endeavored to set up, did not belong to them at the time when Buchner - transferred the cause of action upon the undertaking to the plaintiff in this action. This transfer ■ was made on the 24th of December, 1896, and from that time the plaintiff became the owner of the cause óf action arising upon the • undertaking. No notice of the assignment, however, was given to
For these reasons the judgment and order should be reversed and a new trial granted, with costs to appellants to abide event.
Van Brunt, P. J Barrett, Patterson and O’Brien, JJ., concurred.
Judgment and order reversed, new trial granted, costs to appellant to abide event.