147 N.Y.S. 317 | N.Y. App. Div. | 1914
Lead Opinion
I think the determination of the Appellate Term was right and should be affirmed. I do not understand that the provision with respect to the failure of the surety to justify was enacted primarily for the benefit of the respondent on appeal. Nor do I see how that is at all material. The provision in question, section 1335 of the Code of Civil Procedure, is under the title of the Code that relates to appeals to the Court of Appeals and this is made applicable to appeals to the Supreme Court from an inferior court by section 1341 of the Code. That section 1335 provides that it is not necessary that the undertaking should be approved, but the attorney for the respondent
In this case the surety was notified that the respondent had excepted to his sufficiency and he was asked to justify. He refused, thus evincing an unwillingness to longer remain a surety. Whether that fact was communicated to the respondent’s attorney or not seems to me entirely immaterial. He knew that he had excepted to the sufficiency of the sureties. He also knew that the surety had failed to justify within the ten days allowed, and there was no written stipulation extending the time for the surety to justify. His incidental conversation with the attorney for the appellant, it seems to me, is entirely without effect to bind the surety or to avoid the consequences which from the section of the Code (§ 1335) itself follow from a failure of the surety to justify. The surety was entirely justified in considering himself relieved from further obligation on the undertaking, and, therefore, from taking any further steps to protect himself. Certainly, if no undertaking had been given, the surety could not be liable to the plaintiff in the action or to contribute to the other surety on the bond, and yet the Code expressly says (§ 1335) that the result shall be the same as if no undertaking had been given. In Manning v. Gould (90 N. Y. 476) this section of the Code was before the Court of Appeals, and the court said: “The meaning of this language is too obvious to admit of doubt. Failure of the sureties to an undertaking upon an appeal to justify, when excepted to, defeats entirely the object and purpose of the undertaking.” The court then, speaking of the option of the respondent to refuse to accept the sureties tendered by the undertaking except upon condition that they appear before the judge, are examined as to their responsibility, and the judge approves them after such examination, calls attention to the option that the appellant has either to give notice of the justification of the sureties or to tender other sureties to a new undertaking to the same effect, who must justify before the court below or a county judge, and adds: “ If he does neither, then the case stands as if no attempt to give an undertaking had been made. No reason can be suggested why the respondent should be permitted to disregard the undertaking and pro
In this case the respondent never did withdraw his exception to the sufficiency of the defendant as a surety. He examined the other surety, and, being satisfied with his solvency, consented to the approval of the undertaking without further investigation. Just what effect this had upon the liability of the surety who has justified is not necessary for us to determine, but there was no withdrawal of the exceptions, to the sufficiency of the defendant as a surety, and he never justified, but positively refused to justify, and certainly, as to him, it must be held that the condition was the same as if the undertaking had not been given.
The determination should, therefore, be affirmed, with costs.
McLaughlin and Dowling, JJ., concurred; Laughlin and Scott; JJ., dissented.
Dissenting Opinion
(dissenting):
This is an, action by one surety on an undertaking, given to stay execution of a judgment in an action in the City Court pending* an appeal therefrom, against his cosurety for contribution. By the undertaking the sureties jointly and severally undertook that if the judgment or any part thereof should be affirmed, or the appeal dismissed, they would pay it, or the pari thereof affirmed.
The appeal was duly dismissed, and the plaintiff in that action then sued the sureties, the plaintiff and defendant herein, in the City Court on the undertaking. She recovered a judgment against the plaintiff, but the complaint was dismissed as against the defendant on the ground that he refused
At the close of the evidence herein, on the suggestion of the court, both parties moved for the direction of a verdict; and thereupon the court directed a verdict in favor of the plaintiff subject to the opinion of the court. The record does not show any assent on the part of the plaintiff to the direction of the verdict subject to the opinion of the court; nor does it show any objection or exception thereto. On the suggestion of the court, counsel for defendant thereupon moved to set aside the verdict on all the grounds specified in section 999 of the Code of Civil Procedure, excepting the ground of insufficiency of damages. The court thereafter, without the consent of the plaintiff, entered judgment setting aside the verdict and awarding judgment in favor of the defendant for costs. •
The facts having been found in favor of the plaintiff by the verdict directed for him, the court was without power to change its determination on the facts under the authority reserved by directing the verdict subject to the opinion of the court and to determine them adversely to him, and was only at liberty to set aside the verdict and direct judgment for the defendant if, as matter of law on all controverted facts found in favor of the plaintiff, the defendant was entitled to judgment. (See Code Civ. Proc. § 1185; Matson v. Farm Buildings Ins. Co., 73 N. Y. 310; Murray v. City of N. Y., 60 App. Div. 541; Baker v. Appleton & Co., 107 id. 358; Adams v. Roscoe Lumber Co., 159 N. Y. 176.) Doubtless the court had the right, on the motion made by the defendant, to set aside the verdict and grant a new trial on the ground that the verdict as directed was against the weight of the evidence. There was one issue which I think was material, and only one, on which the evidence was conflicting. The plaintiff in the action in which the undertaking was given duly excepted to the sufficiency of the sureties on the 2d day of March, 1911. Notice of justification under date of March 6, 1911, was duly given
The only statutory provisions relating to the effect of the
I am of opinion, therefore, that the determination of the Appellate Term should be reversed, with costs, and the judgment of the City Court reversed, with costs; hut that a new trial should be granted, to the end that there may be a proper determination of the material fact as to whether or not the attorney for the respondent in the action in which the undertaking was given knew, before withdrawing the notice requiring the sureties to justify, that the respondent herein had refused to justify.
Scott, J., concurred.
Determination affirmed, with costs.