24 N.Y.S. 147 | N.Y. Sup. Ct. | 1893
It appears that prior to the 16th of October, 1891, one Thomas O’Brien had been indicted by the grand jury of Albany county, and on his arrest had been held to bail, to answer such indictment, in the sum of $10,000. Various efforts were made to procure bail for said O’Brien, in which benevolent enterprise the defendant seems to have interested himself; and on the 16th of October, 1891, he went to Albany, and thence to the office of the counsel of O’Brien, and was there told that such counsel would get some one to go on the bond with him, and that it was necessary that the gentleman he was to get to sign the bond should be indemnified in such a way as to guaranty the presence of O’Brien, and in case of default the bond should mature. The defendant at first refused to give such guaranty, but later in the day he appeared; and said it was all right, and for the counsel-to go ahead. Subse-. quently the plaintiff and the defendant became-bail for O’Brien, and he was discharged. After such discharge the parties went to the office of O’Brien’s counsel, and there the bond and mortgage in suit were drawn up by the defendant Nelson, and delivered to the plaintiff. The condition of this bond was that:
“Whereas, the said Maloney has signed as one surety a bond or recognizance, in the penal sum of ten thousand dollars, that Thomas O’Brien shall appear to answer against him in whatever court it may be prosecuted, and shall at all times render himself amenable to the orders and process of the court, and if convicted shall appear for judgment, and render himself in execution thereof, and which bond or recognizance was entered into this day before Hon. Jacob H.-Chite, Albany county judge: Now, therefore, if there shall be no default in the said bond or recognizance so signed by said Maloney, then this obligation to be void; otherwise, to remain in full forcé and virtue.”
When the case of People v. O’Brien was called at the court for trial, O’Brien did not appear, and the bail bond given for his appearance, on which Nelson and Maloney, the parties to this action, were sureties, was forfeited, and this action was commenced. After the commencement of the action a suit was brought on the bail bond, and judgment recovered against Nelson and Maloney, which judgment is yet unpaid; the execution thereon having been returned unsatisfied as to the defendant Nelson, and property of Maloney being under levy and advertisement for sale. Upon these facts the court directed judgment in favor of the plaintiff, and from the judgment entered thereon this appeal is taken.
Various grounds are urged in support of this appeal: That the contract was one to indemnify the plaintiff, and against public policy; that there was no consideration5 for the' obligation; and also that it was error to refuse certain requests. It seems to us that it is not necessary to' consider the question as to whether a contract of indemnity is against public policy in a criminal action