202 A.D. 24 | N.Y. App. Div. | 1922
The following is the opinion delivered at Special Term:
On the 19th day of October, 1920, the defendant in each of these actions executed a confession of judgment for the purpose of securing the plaintiff against contingent liability which might arise out of the execution of a bail bond in the sum of $20,000 for the appearance of one Nieolo Failla in the “ Ninth District Magistrate’s Court, Kings County.” Thereafter Failla appeared in the Magistrate’s Court and the magistrate indorsed on the back of the complaint filed' against him the following: “ Defendants are already indicted.” This indorsement is in the handwriting of the magistrate and follows a printed form of order, the printed order reciting that, there being no sufficient cause to believe parties therein named as defendants to be guilty of the offenses charged, they are thereby discharged from custody. But the words in the handwriting of the magistrate are clearly separated from the printed form of order, which indicates that the defendants were discharged in the Magistrate’s Court solely for the reason that they had been indicted and there was, therefore, no necessity to continue the hearing. So that I reach the conclusion that the proceeding in the Magistrate’s Court was terminated solely because the defendants there named had been indicted by the grand jury. Failla was thereafter arraigned in the County Court to plead to the indictment. Bail was fixed, for his appearance in the County Court in the sum of $10,000 and was furnished by plaintiff. Thereafter Failla defaulted. Judgment was entered by the People against the plaintiff in the sum of $10,000, which was promptly paid. Thereafter the plaintiff entered judgment against these two defendants in the sum of $20,000 and costs upon the confession of judgment herein referred to. At the time these defendants executed the confession of judgment they also signed an indemnity agreement whereby they agreed to indemnify plaintiff and hold it harmless for any loss incurred “ by reason of or in consequence of said bond or any renewal thereof or any new bond issued in continuation thereof or as a substitute therefor.” The defendants move to vacate the judgment entered on the confession upon the ground that the defendants specifically limited the judgment to be entered against them to any liability which might arise on the bond issued in the Ninth District Magistrate’s Court in the sum