Johnson v. Ackerson

Larremore, J. The plaintiffs on the 6th of August, 1869, commenced an action in one of the district courts of this city, against the defendant, Ackerson, for a claim exceeding $100. The defendant, after issue joined, and before trial, removed the action into this court, m pursuance of the act [223] passed April 13th, 1857, and thereupon, executed the undertaking, upon which this action is brought. The complaint alleges the facts above stated, the execution of said undertaking by the defendants herein, whereby they, in consideration of the sum of $1.00, jointly and severally promise and agree that (they) will pay to the plaintiffs uthe amount of any judgment that may be awarded against the defendant (Ackerson), by the court of common pleas.” The complaint further alleges, the trial of the action, and that judgment in said action was awarded to the plaintiffs against the defendant, Ackerson, and duly entered in the office of the clerk of this court; that the amount thus awarded has not been paid, and demands judgment therefor. The defendants demur to said complaint. 1st. That it does not contain sufficient facts to constitute any cause of action. 2d. That the court has no jurisdiction of the parties or of the subject matter of the action j and other grounds, which will appear in the examination of the ease. The third subdivision of section three of the act passed April 13th, 1857, entitled <(an act to reduce the several acts relating to the district courts in the city of New York into one act,” provides, that in any action commenced in pursuance of that section, where the claim or demand shall exceed the sum of $100, upon the application of the defendant, the justice shall make an order removing the same at any time after issue joined, and before the trial of the same, into the court of common pleas, upon the defendant executing to the plaintiff an undertaking, with sureties, to be approved by said justice, with the condition hereinbefore stated. It was urged upon the argument by defendants’ counsel, that said section of the act m question, is unconstitutional $ that the legislature have no power to compel the giving of security upon a mere change of forum. That there was no consideration to support the undertaking. That no demand [224] upon, or after recovery is alleged. That it is not averred that the original action is fully terminated and not appealed from. And that the plaintiff was bound to exhaust his remedy against the judgment debtor before bringing suit upon said undertaking. The right of the legislature to provide for and regulate the practice in the courts of the state, is too well settled to require any extended examination of the question. The section of the statute above referred to, affects the remedy only, it does not impair the obligation of a contract, or take away any vested right. It appears from the complaint, that the court has jurisdiction of the subject matter of the action, and it is unnecessary to aver that the defendants reside within the jurisdiction of the court, provided they are served with process therein. (§ 33, Code; 2 E. D. Smith, 75; 7 Bosw., 685.) The removal of the action is at the election of the defendant, such removal is not compulsory on his part, but having exercised his election, the requirements of the statute must, be complied with. The undertaking in question was given in pursuance of a statute in the form and in a case prescribed therein, and as no demand is required by the terms of the instrument, no such averment is necessary. But if it were necessary, the commencement of the action is a sufficient demand. (Slack agt. Heath, 4 E. D. Smith, 95; Hyde agt. Patterson, 1 Abb., 248 ; Heebner agt. Townsend, 8 Abb., 234.) There is a consideration expressed in the instrument, but even if such were not the case, it being a statutory undertaking, no expressed consideration is necessary to its validity* the statute creates the liability. (Slack agt. Heath, 4 E. D. Smith, 95; Thompson agt. Blanchard, 3 N. Y., 335; Doolittle agt. Dininny, 31 N. Y., 350.) The conditions of the undertaking is “ to pay any amount that may be awarded,” and is an original obligation on the part of defendants, whiph become absolute, when the [225] judgment was awarded. (8 Abb., 234; 4 E. D. Smith, 95; Onderdonk agt. Emmons, 2 Hill, 504.) Following the authority of the cases above cited, it is apparent that the demurrer to the complaint in this action, must be overruled, and judgment ordered for the plaintiffs therein, with leave to defendants to serve answer within five days on payment of costs.