Christal v. Kelly

Barnard, P. J.: A surety upon an undertaking given to release an attachment cannot, after judgment, object to an amendment to the complaint made by consent and without the order of the court adding a defendant. It may w'ell be questioned whether in point of fact the additional defendant made any change in the condition* of the parties. The action was against the members composing a firm, upon a note made by the firm as such and under the firm name, and the omitted defendant was one of the members of the firm. The omission to obtain the order permitting the amendment is cured by the statute. (2 R. S., 425.) The objection that by the addition of this defendant without the consent of the sureties the sureties were discharged, is equally without weight. The action was commenced by attachment. The original complaint stated only two persons as being members of the firm sued. The undertaking in question was given by the two defendants, or at their instance, to release the property levied on. The undertaking took the place of the property. The appellant agreed to pay whatever judgment was recovered against the defendants. Judgment has passed against these two defendants as partners, and also against an additional defendant who was one of the firm and was added for that reason. If the property had still remained subject to the levy, it could not be claimed that it was released because of [157] this addition. There was no new action. It was the same action and upon the same cause of action, and if there had been no objection made by the defendants who were sued, no amendment would have been needed. That the sureties cannot question the regularity or merits of the judgment as settled. (Scofield v. Churchill, 72 N. Y., 565.). That an undertaking given to pay a judgment, to be recovered in an action, binds the sureties to a judgment against any and all the parties. (Gilmore v. Crowell, 67 Barb., 64; Cockroft v. Claflin, 64 id., 464.) The undertaking itself, reciting the fact of the issuing of the attachment, estopped the defendants from questioning the fact of its issue. The objection therefore to the admission of the copy of the attachment on file was harmless. The same can be said as to the admission of the judgment roll. It included the original summons and complaint, and also the amended summons and complaint. If the roll should only have contained the amended pleadings, the annexation of the unamended did not injure the sureties as evidence in this action. The judgment should therefore be affirmed, with costs. Gilbert and Dykhan, JJ., concurred. Judgment and order denying new trial affirmed, with Costs.