137 N.Y. 435 | NY | 1893
We think the judgment and the order refusing to grant a new trial must be reversed for the reason that the trial judge, on the return of the jury into court for further instructions, erroneously and in the absence of the plaintiffs and their counsel instructed them that the question as to the validity of the chattel mortgage under which the plaintiffs claimed title to the property taken by the sheriff on the execution in favor of the Third National Bank, was not material for their consideration in the disposition of the case. It obviously was a fact of great importance as bearing upon the defense that the judgment obtained by the plaintiffs in the action against Bartholmy, the administrator of the sheriff, was collusive and fraudulent.
It was properly conceded by the counsel for the defendants on the argument, that this instruction was erroneous. But it was urged that, in the absence of an exception, the error was not available for the reversal of the judgment. In the case ofWatertown Bank Loan Co. v. Mix (
We are of the opinion the question may be reviewed here either upon the appeal from the order refusing to grant a new trial under subdivision 2 of section 190 of the Code of Civil Procedure, or upon the appeal from the judgment. We perceive no substantial distinction as to the appealability of the order between the case cited and the case in 51 N.Y. The fact that the motion in that case was confined to the specific ground of error of the trial judge in the particular matter, makes no difference in principle. The same question with others was presented upon the case and exceptions, upon which the motion for a new trial in this case was made, and it must be assumed that it was passed upon by the judge in denying the motion. But independently of the order we are of the opinion that an appeal from the judgment presents a reviewable question in this court, founded upon the erroneous proceedings of the trial judge. There can be no doubt that the judge in assuming to further instruct the jury in the absence of the plaintiffs and their counsel, in a matter material to and adverse to their interests and plainly erroneous and prejudicial, committed an *440
error of law. The proceeding appears upon the face of the record. It was a matter occurring in the course of the trial. The plaintiffs had no opportunity to interpose a formal exception. Under such circumstances we think the party injured may on appeal from the judgment raise the question, as though a formal exception had been interposed. The protection of an important right requires that the court in the interest of justice should take notice of the error. The cases in which it has been held that relief against the misconduct of jurors, or referees, or parties not appearing upon the record, in matters arising inpais and presented by affidavits, must be applied for and obtained in the court of original jurisdiction, and that orders made in such cases are not reviewable here, depend upon different considerations. The nature and extent of the misconduct and how far it affected the proceedings, is examined by the court in which it occurred and the orders made in such cases are regarded as discretionary, and as not presenting strictly legal questions. (Williams v. Montgomery,
The only question on the merits presented by this record of which we can take notice, aside from the one just considered, relates to the defense that the judgment obtained by the plaintiffs against Bartholmy, the administrator of Lawson, the sheriff, was collusive. The other defenses relied upon at the trial were either overruled by the court or were not considered, and we cannot consider them for the purpose of sustaining the judgment of the respondents. On the new trial these defenses will be open for litigation and may then be determined. The judgment recovered January 8, 1889, by the plaintiffs against Bartholmy, Admr. of Lawson, was relied upon by the plaintiffs in the complaint and on the trial as concluding the defendants as to the existence and extent of their liability on their bond of indemnity to the sheriff. The bond bound them to indemnify the sheriff against any judgment which might be obtained against him by reason of his levying upon and selling *441
the property under the executions in favor of the Third National Bank. The recovery of a judgment against the sheriff by the plaintiffs, for taking and selling the property levied upon, obtained in due course, and without fraud or collusion, would fix the liability of the indemnitors, because by their contract they made themselves privy to any action brought against the sheriff for that cause, although they were not parties in fact to the litigation, and even although they had no notice of the action, and on the recovery of the judgment they would become immediately liable to the sheriff on the bond for the amount of the judgment so recovered before satisfaction. (Gilbert v. Wiman, 1 Comst. 550, and cases cited; Douglass v. Howland, 24 Wend. 53;Casoni v. Jerome,
The only judgment to which the defense of collusion properly relates, is the judgment of January 8, 1889. The prior judgment of January 3, 1888, was vacated before the commencement of the action. The circumstances connected with the obtaining of that judgment are unimportant, except so far as they tend to throw light upon the motives of the parties to the judgment of January 8, 1889. In other words, if the former judgment was collusive or fraudulent, that of itself does not affect the subsequent judgment and make that collusive *442 also. The facts in respect to the prior judgment may give significance to the acts and transactions resulting in the later judgment, and only such prior facts as were relevant for this purpose were admissible. We express no opinion as to the alleged fraud or collusion in procuring the judgment of January 8, 1889, or in respect to the subsequent proceedings tending to prevent a review of the judgment. This will necessarily be the subject of another investigation by the court and jury.
It is claimed by the counsel for the plaintiffs that the plaintiffs were entitled to the charge requested by him, "that unless there was a good defense to the action brought by the plaintiffs against Lawson, the defendants were not entitled to recover." The court denied this request, but charged in substance that if the defense was made in good faith, and was meritorious, then if Lawson, by collusion with the plaintiffs, prevented the trial of the issues, and suffered judgment, the judgment did not conclude or bind the indemnitors.
It is to be observed that this action is not brought to set aside the judgment against the estate of Lawson. The validity of that judgment between the parties to it is not assailed. The indemnitors had been permitted by the sheriff to defend the action brought by the plaintiffs against him, and their attorneys had interposed several defenses, and the questions were stoutly litigated before the referee, and although judgment passed for the plaintiffs, an appeal was taken by the indemnitors in the name of the sheriff. The questions raised by the defenses were not frivolous. While the matter was in this situation, by arrangement between the plaintiffs and Bartholmy, the administrator of Lawson, the judgment of February 3, 1888, was vacated, a new attorney was appointed by Bartholmy, the case was referred to the same referee to hear and determine the case on the evidence taken on the former trial, and a new report and judgment entered for the plaintiffs. The vacation of the judgment and all the subsequent proceedings referred to, took place on one day, January 8, 1889. It is doubtless true that it is the general rule that *443
acts which work a discharge of a surety must be legally injurious or inconsistent with his legal rights. (Clark v. Sickler,
The judgment should be reversed and a new trial granted, with costs to abide the event.
All concur.
Judgment reversed. *444