Sweeney v. Metropolitan Surety Co. — 129 A.D. 22

Majority

p. 22

Mary M. Sweeney, Respondent, v. The Metropolitan Surety Company, Appellant.

Second Department,

November 27, 1908.

Headnote

Surety — appeal bond—pleading — failure to allege that principal has not paid judgment.

The complaint in an action against the surety on an appeal bond providing that if the principal shall pay any judgment recovered against him, the obligation shall be void, need not allege that the judgment recovered is unpaid, for payment is a matter of defense;

Appeal by the defendant, The Metropolitan Surety Company, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 19th day of May, 1908, upon the decision of the court, rendered after a trial at the Kings County Special Term, overruling the defendant’s demurrer to the complaint.

p. 23

Charles Haldane [David McClure with him on the brief], for the appellant.

Saul S. Myers [Edward B. Levy with him on the brief], for the respondent.

The defendant gave its bond to the plaintiff as surety with Can-let as principal to pay $1,000 to the plaintiff; the condition of the bond being “ that if the said principal shall pay any judgment which may be recovered against him in the above entitled action ” (in which this plaintiff was the plaintiff), “ then this obligation to be void”. The complaint alleges the recovery of a judgment, but contains no allegation that it is unpaid. This case is no exception to •the general rule that payment has to be pleaded as a defence. That the condition of the bond depends on payment by one other than this defendant does not make a difference. The bond is not to be construed, as the appellant contends, as an obligation in form to pay the judgment if the defendant therein does not, in which an allegation of non-payment might be necessary to the complaint. It is an absolute undertaking to pay, followed by a condition that it shall be void upon payment, which is the usual form.

The judgment should be affirmed.

Woodward, Hooker, Rich and Miller, JJ., concurred.

Interlocutory judgment affirmed, with costs.