102 N.Y.S. 1013 | N.Y. App. Div. | 1907
The suit was begun against Manning, this plaintiff’s predecessor; but to avoid confusion I shall speak of Manning as Mossein.
I think that this judgment is erroneous. The defendant was a surety. Johnson secured a judgment in a Municipal Court against Mossein, as president, etc., by default. - After a deal of practice between the parties the Special Term made an order of correction so that Mossein perfected his appeal from an order denying his motion to set aside that judgment. That order also required Johnson or her attorney in that case to make restitution of the sum of $296.17 by depositing it in a bank to the credit of Mossein’s association within five days. This sum had been applied on the judgment in proceedings supplementary to execution. We affirmed that order with modifications. (See Johnson v. Manning, No. 1, 75 App. Div. 285.) The provision for restitution, however, was not affected. Before that appeal Johnson gave an undertaking, which reads as follows: “ Whereas, on the 3rd day of April, 1902, in the Supreme Court, at a Special Term thereof, the above-named John J. Manning, as president, &c., defendant and respondent, obtained an order against the above-named Christina Johnson, plaintiff and appellant, directing the plaintiff herein and her attorney, George Gru, to make restitution of the sum of two hundred and ninety-six 17/100 ($296.17) dollars to the defendant herein by depositing the said $296.17 with the Germania Savings Bank to the credit of said defendant association. And the appellant feeling aggrieved thereby intends to appeal therefrom to the Appellate Division of the Supreme Court, Second Department. Mow, therefore, the Empire State Surety Company, having an office and place of business at Mo. 375 Fulton. Street, in the Borough of Brooklyn, City of Mew York, does hereby, pursuant to the statute in such case
The. power to make the order requiring such restitution was challenged on this trial, but we 'have already affirmed it.- I think that our affirmance was right.. In Granger v. Craig (85 N. Y. 619) it is. said: “ The Code, however, doesmot abridge, the power that the Supreme Court has always had over its own judgments, to correct' mistakes in 'them, to vacate them for irregularity, to stay proceedings on them for such time and on such terms as to the court seem proper.” (See, too, Genet v. President, etc., D. & H. C. Co., 113 N. Y. 472, 474; Code Civ. Proc. § 217.) In Graham’s Practice (2d ed. p. 367) it- is said: “So also, where a writ of error is brought, and bail in error put in within four days after judgment, if the execution have been levied, the court will, direct restitution of the amount collected, or of premises of which the party has been turned out of possession, under it. (7 Cowen, 417;
But the defendant’s liability “ is limited to the express terms oi the contract, and his obligation should be construed strictly and favorably to the surety so far as is warranted by the terms employed.” (Ward v. Stahl, 81 N. Y. 408.) That contract is that restitution will be made by depositing the sum with the Germania Bank to the credit of the said defendant association, and this is all that should be required of the defendant with respect to that sum.
It may be entirely true that as to third parties it is immaterial whether a person receive money or whether it be redeposited to his credit, and that there is no Complication in this case which makes one disposition or the other of consequence to the surety so.long as it is protected by a judgment. But Johnson, the principal of the defendant, as the plaintiff in the action which proceeded to judgment in her favor, is entitled to the strict construction of the undertaking to the end that there should be a redeposit of the money. She docketed her judgment and issued execution thereon to the sheriff. Upon return of execution unsatisfied proceedings supplementary were taken which revealed this deposit, and it was applied on the judgment. We modified the order which denied a motion made to set aside the judgment and subsequent proceedings taken pursuant thereto by staying all proceedings in enforcement of the judgment so docketed until the hearing and disposition of proceedings which Mossein might be advised to take and promptly 'might take toward relief from said default. (Johnson v. Manning, No. 1, 75 App. Div. 285.) We did not set aside the proceedings, but held them in abeyance, and it may well be. that Johnson had proceeded so far and so well as to sequester that sum, subject to her. right of specific appropriation to her judgment in the event that she finally held that judgment. The plaintiff read in evidence the transcript of the judgment which'Johnson had recovered, and it appears by the uncontradicted evidence of the defendant that such judgment had never been reversed or set aside. It is obvious, then, that Johnson being only required to redeposit the money, and the surety having only undertaken that this should be done, Mos
As to the point made that the case was not properly moved for trial in that no notice had been served by the plaintiff and the case, therefore, was not properly upon the calendar, it appears that the ■ Special Term in allowing the amendment to. the complaint provided : “ Service of said amended complaint shall be. without prejudice to the position of the case on this General Trial Term calendar of this court, and that the said case retain its said place upon said calendar.” This provision was within the power of the court. (Myers v. Metropolitan Elevated R. Co., 16 Daly, 410, 413, citing cases.) The court denied the application that the case be not tried on the ground that “ Hnder the rules of the court all applications for postponement are made in Part I and cases are sent from Part I to the various trial parts for disposition. ' I deny this application to ad journ on the ground that all such applications must be made in Part I,' and the case being sent here I must assuine that the court in Part I has passed upon this application and denied it.” I think that the learned court was correct. (General Rules Pr., rule 83 ; Calendar Buies of Trial Term, Kings Co.) In any event the appellant has not pursued the correct practice to raise the question. (Martin v. Hicks, 6 Hun, 74.)
Hooker, Bioh and Miller, JJ., concurred.
Judgment and order modified as indicated in the opinion of Jenks, J., and as thus modified affirmed, without costs. Order to be settled before Jenks, J.
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