McNamee v. Natl. Surety Co.

BIJUR, J. Plaintiff, a marshal, sues to recover from the defendant, the surety on an indemnity bond, because of a recovery by the defendant in execution against the present plaintiff in an action for the wrongful levy and execution upon exempt property. [1] The point made by appellant is that although the language in the condition of the bond is general and recites an agreement to indemnify the plaintiff against “all claims for or by reason of the levying and sale, etc., of all or any personal property which plaintiff may judge to belong to said judgment debtor,” etc., in the usual form, this language must be held to be limited by the recital which refers first to the original suit and the execution issued to plaintiff commanding him to take the goods and chattels of the judgment debtor, and continues, “And whereas certain personal property that appears to belong to the said judgment debtor against whom said execution has been issued as aforesaid is or may be claimed by some other party or parties, now, therefore, etc.” In other words, appellant urges that this recital limits the indemnity, to which appellant is bound, to claims against plaintiff by third parties to the execution, and that it does not cover the judgment recovered against the plaintiff by reason of his having levied upon the judgment debtor’s exempt property. In support of its position, the defendant appellant cites a number of cases, such as McElroy v. Mumford et al., 128 N. Y. 303,28 N. E. 502; Nat. Mech. Bkg. Ass’n v. Conkling et al., 90 N. Y. 116, 42 Am. Rep. 405, note; De Camp v. Bullard et al., 22 Misc. Rep. 441, 50 N. Y. Supp. 807. [2] Defendant does not contest their application, but contends that they hold that, in addition to the recitals in a bond or undertaking, the circumstances surrounding the transaction must also be taken into consideration in order to determine whether and to what extent the apparently general obligation of the surety is to be held limited. It is not necessary for a determination of this appeal to decide which interpretation of these cases is correct, because respondent points to no circumstances, known to defendant or o f which defendant would be chargeable with knowledge upon any possible theory, which would in any wise affect the evident limitation upon the appellant’s liability indicated by the recital. The only circumstance which I can find even hinted at is that one off the attorneys who in this action appear for the defendant was the plaintiff in the action in which the execution was issued, and that defendant’s present attorneys appeared as attorneys, in that action for the plaintiff therein, and also appeared for the present [760] plaintiff in the successful action brought against him by the execution debtor. There is not the slightest suggestion that these attorneys were attorneys for the appellant at the time the bond was given, even assuming that there were circumstances which would modify the effect of the recital, and further assuming that knowledge of such circumstances on the part of the defendant’s general attorneys would be imported to the client. Judgment reversed, and new trial granted, with $30 costs to appellant to abide the event. All concur.