122 N.Y. 551 | NY | 1890
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *553 January 22, 1885, Morris Steinbock brought an action against Charles W. Rogers in the Superior Court of the city of New York, and alleged in his complaint that the defendant on the 7th day of April, 1884, by false and fraudulent pretenses obtained six thousand dollars from the plaintiff and had paid no part thereof. January twenty-third, the defendant was arrested and held to bail in the sum of $2,500 pursuant to title one, chapter seven of the Code of Civil Procedure, and on the same day the defendant in that action and the appellants in this, undertook "jointly and severally in the sum of two thousand five hundred dollars, that the above named defendant arrested as aforesaid, shall at all times render himself amenable to any mandate which may be issued to enforce a final judgment against him in the action," pursuant to the third subdivision of section 575 of the Code of Civil Procedure. March 7, 1885, the defendant answered admitting that he with another borrowed the money, but denied that it was obtained under false pretenses. The issues so joined were called for trial March 8, 1886, when the parties to the action entered into a written stipulation by which the defendant withdrew his answer, and the plaintiff stipulated not to enter judgment before March 29, 1886, and if before that date the defendant should pay the plaintiff $3,000, then judgment was not to be entered before July 1, 1886, and if prior to the last-mentioned *555 date the defendant should pay the remainder due to the plaintiff with interest and costs, that the action was to be discontinued. The stipulation contained the following provisions: "In case the plaintiff shall enter judgment herein upon the defaults in either of the payments above provided he shall have the same right to enforce said judgment so entered by execution as he could have had had such judgment been entered on a verdict of a jury in favor of the plaintiff in this action."
"The defendant recognizes by this stipulation his full liability to the plaintiff upon the said note, but hereby disclaims any admission of the truth of the allegations of fraud in the complaint contained, and enters into this stipulation solely as a means of providing security for the payment provided for, and providing a remedy in case of a default in the said payments."
This stipulation was made without the knowledge of the appellants in this action and they never learned of it until this suit was begun.
March 26, 1886, this stipulation was given without the knowledge of the appellants:
"Notice of application for judgment is hereby waived. It is consented that the clerk enter judgment for the amount demanded in the complaint and costs. Dated New York, March 26, 1886. Eaton Lewis, attorneys for defendant."
On the 7th day of April, 1886, a final judgment was entered in the action against Rogers for $6,853.49 on the pleadings and the two stipulations, and on the next day an execution against the property of the defendant was issued. On the fifth of June following it was returned unsatisfied, and on the eleventh of June an execution was issued on the judgment to the sheriff of the city and county of New York, who on the thirtieth day of that month returned it, that the defendant in the action could not be found in his county. On the 14th of July, 1886, this action was brought upon the undertaking, which resulted in a judgment in the sum of $2,500 with interest from June 30, 1886, which was affirmed by the General Term. *556
The appellants insist that they are not liable on this undertaking, because the liability of their principal was not established by common-law evidence.
In Conner v. Reeves (
Under section 1915 of the Code of Civil Procedure the plaintiff was entitled to recover the penalty of the bond "with interest thereupon from the time when the defendant made default in the performance of the condition," which was June 30, 1886, the date when the execution against the defendant's body was returned unsatisfied.
The judgment should be affirmed with costs.
All concur.
Judgment affirmed.