Binsse v. . Wood

Hunt, Ch.J. If the parties to this action were La Farge and Wright, scarcely a question could be raised. They made a lease and contract, by which it was agreed that certain buildings should be finished and fitted up byLa Farge; that the same should be taken by Wright for a designated period, at a stipulated rent; and that the time when the rent should commence to run should be fixed by the mutual award of Philip Burrowes and Charles E. Appleby, and the intervention of an umpire, if needed. They further agreed upon a mode of obtaining a new arbitrator, in case either of those named should refuse or become unable to act. At a subsequent period, they deemed Burrowes unable to act, appointed or agreed to the appointment of Mr. Loucks in his stead, produced their witnesses and made their proofs before the' two arbitrators thus appointed, and an award was made fixing the time when the rent should begin to run. The time of the commencement of the rent being thus fixed, the rent per month being specifically agreed *46 upon, and the termination of the lease, by the burning of the building on the 8th of January, 1854, being assented to by both parties, the amount due was a matter of figures merely. This suit, however, is against Hr. Wood, not the original lessee, but a surety for the payment of a certain amount of the rent by Wright, during the first year. It is insisted that his position presents different questions. It is argued that, by the terms of the lease, the rent was not to commence until the hotel was finished fit for occupancy, and that that event has never occurred; also that the Defendant could not be made liable for rent, by any determination of the arbitrators, until the landlord had first put the tenant in possession, and this event, it is said, has never occurred. The Defendant further insists that, although Wright may be concluded by the award, by reason of his appearance and participation in the proceedings before the arbitrators, that he, being a surety, and having taken no such part, and having no notice thereof, is not bound by them. I apprehend that the Defendant is in error in these positions, and that he occupies the same ground, and no other, as that occupied by Wright himself. This is one of those cases so clearly defined by Smith, J., in Bridgeport Insurance Company v. Wilson (34 N. Y. R. 275), where the Defendant makes his liability to depend upon the result of a litigation between other parties. See also Lee v. Clark (1 Hill, 56; Rapelye v. Prince, 4 Hill, 119; Aberdeen v. Blackmar, 6 Hill, 324). The rule is thus laid down: “ Covenants to indemnify against the consequences of a suit are of two classes: 1.. Where the covenantor expressly makes-his liability depend on the event of a litigation to which he is not a party, and stipulates to abide the result; and 2, where the covenant is one of general indemnity merely. In cases of the first class, the judgment is conclusive evidence against the indemnitor, although he was not a party, and had no notice, for its recovery is the event against which he covenanted. In those of the second class the rule already stated applies, to wit, that the want of notice does not go to the cause of action, but the judgment is primá facie evidence only against the indemnitor, and he *47 may Be let in to show that the principal had a good defence to the claim.” The result of the litigation to which the present Defendant committed himself is binding upon him, without notice, leaving him, however, at liberty to show fraud, collusion, and perhaps that there was a good defence which the party neglected to interpose. The judgment—a decision—is evidence against. him, and, until attacked by one of these modes, is conclusive. It would scarcely be argued that Wright could insist that he had never had possession, or that the buildings had never been finished, and that therefore the award did not bind him. The authorities cited show that Wood is equally bound by this decision with Wright, subject to the qualifications stated. The Defendant Wood expressly stipulated that Wright should pay the rent “ during the period of one year from and after the time the rent shall commence, according to the condition of said lease.” That condition provided that the commencement of such rent should be ascertained by the award of referees, selected and to be selected by La Farge and Wright, and in no other mode. The Defendant therefore agreed that the commencement of the rent should be fixed by the referees then to be chosen. Their decision settles that period, as to him, as well as to Wright. The other and preliminary questions are no more open in the one case than in the other. The instruments and proceedings by which the time was fixed were necessarily given as evidence. In no other manner could the liability be fixed. They were binding upon the Defendant, subject to his right of attack, as I have before explained (Story on Agency, §§ 58, 59, 60, 70, 85). The same principle furnishes the answer to the allegation of error, in the substitution of Loucks as a referee in place of Burrowes. The doctrine which binds the Defendant to the result of the litigation between La Farge and Wright also binds him as to the means by which that result was effected (Story’s Ag., sup.). The power to determine the question of inability or refusal was extended by the Defendant to Wright, as was the production of evidence, and other proceedings on the hearing before the referees. As an original question, too, I see no difficulty on this *48 point. At the time the question was to be investigated by the referees, Burrowes was absent from the United States—had left the country a year previously, and as an absconding debtor. This presented a case of inability to act. The Defendant further insists that there was error in the refusal of the Court to dismiss the complaint, at the close of the evidence. The record is this: “ The Plaintiff then rested his case. The counsel for the Defendant then moved to dismiss the complaint. The Court overruled the motion, and the Defendant excepted.” The Defendant now insists that it was not proved that the hotel was completed, or that Wright had entered into possession, and that this proof was essential to the right of recovery. An answer has already been made to this suggestion. It would be sufficient also tp say that a motion for a nonsuit, or a motion to dismiss the complaint, to be effectual, must specify the defects supposed to exist. It is not sufficient to make a general objection. In the present case, the proofs which it is said are not presented might have been supplied without difficulty, and the objection thus obviated. We have repeatedly held that this is not sufficient (see Shotwell v. Mali, 38 Barb. 445—affd. 36 N. Y. 200, sub-nom. Bruff v. Mali). It is said that the judgment was erroneously entered for a larger amount than was authorized by the G-eneral Term. This is not the subject of an appeal to this Court, but should have been corrected by motion made in the Court below. Judgment should be affirmed, with costs.