Bristol v. Graff

Williams, J.: The judgment and order should be reversed and a new trial granted, with costs to appellant to abide event. The action was upon an undertaking given to procure the discharge of James W. Shipman from an order of arrest under section 575 of the Code of Civil Procedure. The order .was made in an action wherein Shipman was defendant and this plaintiff was plaintiff. Graff, the appellant here, was a surety upon the undertaking. The only question of fact submitted to the jury was whether, at the time the undertaking was executed and delivered, it contained the words “jointly and severally.” The undertaking, when produced upon the trial, did not contain these words. They were originally printed in the blank, but had been erased by drawing a pen .through them. TJpon a conflict of evidence, and after a serious controversy over this question, the jury found in favor of the plaintiff, that the undertaking, when executed, was joi/nt and several, as [428] required by the statute, section 812, Code of Civil Procedure. We cannot disturb that finding; there was evidence to support it, and the finding cannot be held to be contrary to the evidence under the well-settled principles of law governing our action on appeal. Questions of law were, however, raised upon the trial and are here for our determination. One of them seems to be fatal to the plaintiff’s right to recover in the action. The order of arrest required the sheriff to hold the defendant to “ bail in the sum of $1,500, by a written undertaking, executed by two .or more sufficient sureties, to the effect that the defendant shall at all times render himself amenable to any mandate which may be issued to enforce a final judgment against him in the action.” ■ The action was' for a wrong to recover damages for the fraudulent conversion and misappropriation of moneys or property held by defendant in a fiduciary capacity, and the demand for relief was for the recovery of money only. In such an action the bail could only be by an undertaking under subdivision 3 of section 575 of the Code of Civil Procedure, and the order of arrest correctly so directed, using the precise language of that subdivision. The defendant was arrested by the sheriff of Cortland county, and, desiring to give the bail required, went with the sheriff to the county judge’s office. Plaintiff’s attorney was there present and also the attorney for the defendant and his surety, Graff, the appellant. The county judge, for some reason, furnished a blank undertaking in the form used under subdivision 1, instead of subdivision 3, of the section of the Code in question. The attorney for the defendant undertook to fill up the blank and to make it conform, to subdivision 3 by erasures and interlineations in the printed form. He allowed the matter required by subdivision 1 to remain, down to the words “proceedings to punish Twm for the omissionerased these words, and then added the words required by subdivision 3, so that the undertaking as prepared for execution read as follows: “ Undertake in the sum of Fifteen hundred dollars that the said defendant, James W. Shipman, will obey the direction of the court or of an appellate court, contained in an order or a judgment, requiring ■ him to perform the act specified in the said order of arrest, or, in default of his so doing, that he will at ;all times render himself amenable to any mandate which ■ may be issued to enforce a final [429] judgment against him in the action.” The undertaking in this form was executed, the county judge taking the acknowledgments and the sheriff accepted the same and discharged the defendant from arrest. The action proceeded to judgment in the usual form for money only ; an execution against property was issued and returned unsatisfied, and an execution against the person, was issued and returned to the effect that defendant could not be found. This action was then commenced. It is claimed that no default was made under this undertaking entitling plaintiff to recover against the surety Graff; that he did not undertake that Shipman would unqualifiedly render himself amenable to a mandate to enforce the judgment, but that he would render himself so amenable only in case of his default in obeying the direction of the court or an appellate court, thereinbefore referred to, and no such default was shown or could be shown. Ho such direction could be given by the court in the action. If the undertaking had been to the effect that he would obey the order of the court and render himself amenable to a mandate to enforce the judgment, it might be held that the provision as to obeying the direction of the court imposed no obligation in such form of action ; that the words were merely surplusage and could be disregarded as such and effect given to the remaining words which were sufficient under subdivision 3 of the section. We do not, however, see how the peculiar language used in this undertaking can be disregarded and the liability held to be unqualified that Shipman shall render himself amenable to a mandate to enforce the judgment in the action. If we attempt to disregard the objectionable words and tp read the balance as indicating the real undertaking, we thereby change materially the obligations of the surety, and this we are not permitted to do. In Post v. Doremus (60 N. Y. 371) there was an appeal to the Court of Appeals from an order made by the General Term granting a new trial. An undertaking was given to perfect the appeal and also to stay proceedings, the latter part providing that if the judgment appealed from should be affirmed or the appeal be dismissed the appellant would pay the amount directed to be paid by the judgment, etc. It was held that this latter part of the undertaking created no liability on the part of the sureties; that such [430] liability was dependent upon the occurrence of a precedent event; that the judgment appealed from should be affirmed, but that event could never occur because no judgment was appealed from and none could be affirmed. In Concordia Savings & Aid Assn. v. Read (124 N. Y. 189) an undertaking to stay proceedings in a foreclosure case, instead of providing for the. payment of deficiency under section 1331 of the Code of Civil Procedure, was in the form prescribed by section 1327 to stay execution on a money judgment, and provided that if the judgment appealed from should be affirmed or the appeal be dismissed, defendant would pay the sum directed to be paid by the judgment, etc. It was held that the judgment appealed from did not direct any money to be paid (Barnard v. Onderdonk, 98 N. Y. 158, 167), and, therefore, no recovery could be had upon the undertaking beyond the costs inserted in the judgment appealed from, even though there was finally a deficiency upon the mortgage which the defendant was liable to pay. These cases are not precisely in point here, but they illustrate the principle that the sureties upon an undertaking are not liable beyond the language of their agreement fairly construed. They are not bound by any intention that may have existed unless it is expressed in the undertaking itself. The liability in this undertaking is made to rest upon the precedent event that the defendant made default in obeying a direction of the court, and the fact that no such direct tion could be given and there could, therefore, be no default, did not operate to render the surety liable in the absence of such precedent event, the default occurring. - We conclude, therefore, that the judgment and order appealed from were improperly rendered and made and that they should be reversed and a new trial granted, with costs to the appellant to abide event. Adams, P. J., Spuing and Mash, JJ., concurred; McLennan, J., dissented.