V. Loewer's Gambrinus Brewery Co. v. Lithauer

43 Misc. 683 | N.Y. App. Term. | 1904

Soott, J.

The bond which the appellant gave for the marshal, Lithauer, is conditioned that he shall well and faithfully execute the said office of marshal without fraud, deceit or oppression and shall in all things well and truly and faithfully perform the duties of his office and properly account for and pay over all moneys or properties received by him as marshal, etc. It is well settled, in this State, that, in an action brought against the surety upon such a bond, a judgment against the marshal for a conversion, or an unlawful levy, is neither conclusive nor prima facie evidence against the surety of the facts essential to the recovery. People ex rel. Tuthill v. Russell, 25 Hun, 524; Berry v. Schaad, 50 App. Div. 132. It is true that, by section 295 of the Municipal Court Act (Laws of 1902, chap. 580), it is necessary to show, as a condition of maintaining an action against a surety on such a bond, that a judgment has been recovered against the marshal and execution issued and returned wholly or partly unsatisfied and leave given to prosecute the bond. The act, however, does not declare that the judgment against the marshal shall be evidence against the surety of anything more than the fact that such a judgment has been obtained. As to the ultimate fact, whether or not the marshal has been guilty of misconduct, the surety is entitled to his day in court and an opportunity to litigate. The distinction between such a bond, as is involved in this action, and one whereby the surety undertakes that the principal shall comply with an order or judgment of the court is clearly pointed out in People ex rel. Tuthill v. Bussell, supra. The plaintiff offered no proof of the marshal’s misconduct except the judgment-roll in the action against him. As that was insufficient the judgment must be reversed and a new trial ordered, with costs to the appellants to abide the event.

Freed maw, P. J., and Truax, J., concur.

Judgment reversed and new trial ordered, with costs to appellants to abide event.