Culliford v. Walzer

Gaynor, J. In an • action by this plaintiff against one Gad in the Superior Court of Hew York city the said defendant therein was taken under an order of arrest and released on $1,000 bail. Thereafter judgment was obtained against him therein for $1,338.90. On appeal therefrom to the General Term he gave an undertaking staying execution. Judgment of affirmance and for $105.68 costs followed. An appeal was taken to the Court of Appeals, and execution was stayed thereon until, April 1, 1892, when the undertaking effecting the stay was canceled for fraud in the giving thereof, by an order of the Superior Court; and on April 23rd following the appeal was dismissed by the Court of Appeals and a judgment for $38.18 costs entered thereon. Meanwhile, on April 19th, executions against property had been issued upon the said first two judg [494] ments, and on April 25th a like execution was issued on the third judgment. On April 29th all of these executions were returned unsatisfied. The said defendant perfected a new appeal to the Court of Appeals thereafter, viz., May lltli, 1892, by service of a new notice of appeal and undertaking to stay execution of the judgment. But on May 10th the plaintiff had begun an action on the undertaking given on the appeal to the General Term. Only one of the sureties was served, and on June 1st judgment was taken against him on default for the amount of the said two first, judgments and costs; viz., $1,513.64. Execution thereon was at once issued, but it was withdrawn after the sheriff had advertised property for sale, and the amount of the judgment was paid on or about August 30th, 1892. At the time this judgment was entered, and the execution was issued, and the money paid, the stay on the said second aj>peal to the Court of Appeals was operative. This second appeal to the Court of Appeals resulted, on October 6,1893, in a judgment of affirmance and for $110.34 costs. Execution thereon was issued and returned unsatisfied, and then on March lltli, 1893, executions against the person on all four judgments were issued, and they were returned defendant not found on March 30tli. Thereupon this action was begun by the plaintiff in the said action against Gad against the sureties in the bail undertaking to recover the $1,000 bail. The said undertaking covers hot merely the principal judgment in that action, but also the said three succeeding judgments for costs on the several appeals. Appleby v. Robinson, 44 Barb. 316. It follows that the plaintiff is entitled, at all events, to recover herein the amount of the last two judgments; viz., one for $38.18 and the other for $110.34 ; for these were not included in his action upon the undertaking on appeal to the General Term, and' remain unpaid. In respect of the other two judgments, they were embraced in the said action. The surety against whom the judgment therein was obtained became vested, upon payment thereof, with the right of subrogation to the rights of this plaintiff under the said two judgments, to [495] look for indemnity to the said bail undertaking of these defendants. But in place of so subrogating himself, he consented that the said judgments should stand in the name of the plaintiff, and that the rights and remedies thereunder, and also common to the plaintiff’s two later judgments, should be enforced by the plaintiff. I think this may be done, and that the plaintiff is to be deemed herein the real party in interest to bring this action upon the said bail undertaking in whole, the proceeds to be received partly as his, and partly as trustee for the said'surety on the appeal undertaking, instead of each bringing a separate action thereon. Mad. Sq. Bank v. Pierce, 137 N. Y. 444. The bail are primarily answerable to the plaintiff for $1,000 upon their undertaking, and the equities between him and the said surety on the appeal undertaking do not concern them. I see nothing in the contention that the sureties on appeal in such a case are primarily liable, and not entitled to subrogation to the rights of the plaintiff under the first judgment to recover of the hail. The primary liability is upon the defendant in such a case, and then upon his bail if their undertaking bo broken, and the sureties upon appeal by paying the amount of their liability, are equitably subrogated to the plaintiff’s right to enforce the liability of the bail. Nor may the defendants herein object that the judgment was entered and the execution issued against the said surety on the appeal undertaking while the execution of the judgments against Gad was stayed by the second perfected appeal \xto the Court of Appeals, for that is no concern of theirs. Judgment for plaintiff for $1,000. Ordered accordingly.