158 N.Y. 351 | NY | 1899
By the judgment under review a mortgage given by the appellant Nelson was foreclosed. The defenses interposed by him upon the trial, and relied upon here, are:
1. The stipulation given by the plaintiff on the appeal to *353 this court in a prior action brought to foreclose the mortgage is a bar to the recovery in this action.
2. The bond and mortgage having been given to indemnify bail in a criminal case, they are void, because contrary to public policy.
The essential facts are that Nelson offered himself as bail for one O'Brien, who had been arrested for a felony and held to bail in the sum of $10,000; that another surety was required, and Nelson, in order to induce the plaintiff Moloney to unite in the execution of the bail bond, executed and delivered to him the bond and mortgage in suit. The bond contained the usual conditions, and in addition thereto the following: "Now, therefore, if there shall be no default in said bond or recognizance, so signed by said Moloney, then this obligation to be void, otherwise to remain in full force and virtue."
A prior action to foreclose this mortgage was brought by the plaintiff and judgment of foreclosure therein was obtained at Special Term. The General Term ordered a reversal of that judgment, and from that order the plaintiff appealed to this court, giving the usual stipulation for judgment absolute in the event of an affirmance. This court affirmed the order of the General Term (Maloney v. Nelson,
The defendant recognizes the existence of the rule that where a plaintiff has been defeated in an action because he brought it prematurely, the judgment entered therein is not a bar to a subsequent suit brought after the right of action has accrued (Converse v. Sickles,
The case of Roberts v. Baumgarten (
As to the second ground relied upon to defeat the action, viz., that the bond and mortgage were void as against public policy, the question is an open one in this state, so far as decision is concerned, but the view of this court was expressed in Maloney v. Nelson (supra). The court said: "This leaves it unnecessary to consider the other defenses set up in the answer of the defendant Nelson, although we must say that the claim that the defendant's contract was void as against public policy, does not impress us as being a good defense, at least in this state." It is true that in some other jurisdictions, as is pointed out in the very careful opinion of the Appellate Division, it has been suggested, if not decided, that it is against public policy to allow bail to become indemnified, the reason given being that the object for which the bail is required is to assure the appearance of the prisoner to answer the charge against him, and that necessarily the bail had a direct pecuniary interest in preventing the escape of the prisoner, which he would not have were he fully indemnified. That is not the public policy of this state; for the giving of bail in criminal cases is regulated by statute, and the legislature has, by its provisions, provided that a personally responsible surety may be altogether omitted if the accused prefers to make a deposit of money; he may have his choice either to give a bond with sureties, or make a deposit of money. It is the loss of the money deposited, or the assurance that the sureties will be obliged to pay the amount of the bail, that is relied upon to secure the presence of the accused. It, therefore, cannot be said to be a part of the public policy of this state to insist upon personal liability of sureties, for there need not be such personal liability in any case if the accused make a deposit of money in lieu of bail, as provided by the statute.
The judgment should be affirmed, with costs.
All concur.
Judgment and order affirmed. *356