Mills v. Rodewald

Ingalls, J. : This motion was decided by the Special Term, and upon appeal to* this court the order was affirmed, but with leave to the appellant to renew the motion at Special Term, which has been done,, with a similar result. The opinion of the judge at Special Term, shows that the relief sought was denied, mainly upon the ground that Hildreth holds an undertaking, executed by the wife of Rodewald, to indemnify him against any loss to which he may be subjected in consequence of becoming bail for her husband, and that the facts do not show that such security is either worthless or inadequate. ' We think his conclusion is not without foundation. The obligation was voluntarily assumed by Hildreth, and relied upon by the plaintiff. The wife of Rodewald has interposed for the protection of her husband, and pledged her property, as the law allows her to do. The act may have been improvident on her part, and Hildreth may have acted unwisely in becoming bail, yet [302] the obligations were voluntarily assumed, and tbe fact will not justify this court in reversing the order of tbe Special Term. It .should be affirmed. Davis, P. J.: I am of opinion that the court below- was correct in bolding that the new application did not essentially change the facts as presented before, and did not show that the indemnity given to the bail by Mrs. Rodewald was invalid or insufficient, wholly or in part, or that she w'as insolvent. the order should therefore be affirmed, for the reasons assigned on the former appeal to this court. Neither tbe facts nor tbe law have been changed, and our sympathies ought not to lead us to disregard tbe legal rights of tbe plaintiff.