Haroco Co. v. National Surety Corp.

| N.Y. App. Div. | May 11, 1954

Per Curiam.

In the absence of a showing of fraud or collusion the compensated surety is liable for the judgment recovered in the action in accordance with the terms of its bond. However, the judgment is “ only prima facie evidence against the surety” (Brescia Constr. Co. v. Walart Constr. Co., 245 A.D. 105" court="N.Y. App. Div." date_filed="1935-06-20" href="https://app.midpage.ai/document/brescia-construction-co-v-walart-construction-co-5340589?utm_source=webapp" opinion_id="5340589">245 App. Div. 105, 108). It appears from the record that $500 of the amount of tiie judgment recovered does not stem from a liability owed by the principal to the plaintiff, but on the contrary relates to a liability to the codefendant in the action in which the undertaking was filed. Accordingly, the judgment should be modified by reducing it to the sum of $9,500, with leave to the codefendant in said action to apply for such relief as he may be advised, without costs to either side.

Dore, J. P., Callahan, Breitel, Bastow and Botein, JJ., concur.

Judgment unanimously modified in accordance with the opinion herein and, as so modified, affirmed, without costs to either side. Settle order on notice.