Krause v. Rutherford — 81 A.D. 341

Majority

p. 341

Leopold Krause, Respondent, v. James Rutherford and Others, Appellants.

Headnote

Undertaking given on obtaining the arrest of two defendants&emdash; it is enforcible by one of them as to whom the order of arrest is vacated.

The plaintiff in an action, in order to procure an order oí arrest against the defendants therein, gave an undertaking conditioned “ that if the defendants recover judgment herein, or if it is finally decided that the plaintiff was not entitled to the order of arrest, the plaintiff will pay all costs which may be awarded to the defendant^[1] and all damages which they or either of them may sustain by reason of the arrest, not exceeding the sum of two hundred and fifty dollars.”

Two of the defendants, named respectively Krause and Geldrich, were taken into custody under the order of arrest. The order of arrest was subsequently vacated as to Krause, but was left in full force and effect as to Geldrich.

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Held, that Krause could, without joining Geldrich as a party, maintain an action upon the undertaking for the following reasons: Mrst, that, by the express terms of the undertaking, each of the Obligees had a several right' to enforce it, and, second, because it appeared that the plaintiff had obtained final judgment against Geldrich and that the latter consequently had no cause of action on the undertaking.

Appeal by the defendants, James Rutherford and others^ from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Delaware on the 19th day of March, 1902, upon the decision of the court rendered after a trial at the Delaware Trial Term, the jury having been discharged.

The action is upon an undertaking given by the defendant Rutherford as principal, and the defendants Wood and Smith as sureties, to procure an order of arrest of the defendants in an action brought by the appellant Rutherford against the respondent Krause and three other defendants for an alleged wrongful injury to property. After reciting that an application was about to be made for an order to,arrest Krause and three other defendants in that action, the undertaking provided that the obligors “ undertake, jointly and severally, pursuant to the statute, that if the defendants recover judgment herein, or if it is finally decided that the plaintiff was not entitled to the order of arrest, the plaintiff will pay all costs which may be awarded to the defendants and all damages Which they or either of them may sustain by reason of the arrest, not exceeding the sum of two hundred and fifty dollars.” The order of arrest was issued by the county judge of Delaware county and Krause and one other defendant, John Geldrich, were arrested. Krause was confined in jail from June 21,1893, until November 13, 1893, when the order of arrest was vacated and set aside as to him by the county judge who granted it, but it was left in full force as to Geldrich. The order vacating having been made upon an ex parte application, Rutherford made a motion on notice at Special Term December 13, 1893, to vacate the order of November thirteenth. That motion was denied without prejudice to the renewal thereof before the county judge. Two days afterwards, on December 15, 1893, this action was commenced. An order Was afterwards procured, returnable before the county judge January 5, 1894, requiring Krause to show cause why the order vacating the order, of arrest as

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to him should not be vacated and set aside, and that motion was denied. .

The trial resulted in a judgment for the plaintiff for $165.'TO damages besides costs, and the defendants have appealed.

The case was here upon an appeal from a judgment in favor of the plaintiff on a former trial and' is reported in 45 Appellate Division, 132.

E. A. Mackey, for the appellant Rutherford.

E. H. Hanford, for the appellants Wood and Smith.

George W. Youmans, for the respondent.

The defendants insist that the action was prematurely brought, .but we are precluded from examining that question, as it was •decided upon facts substantially identical with those presented here ■on the former appeal. It was there held that it was not (Krause v. Rutherford, 45 App. Div. 132 ), and that must stand as the law of the case until reversed.

Krause and Geldrich were the only persons arrested under the -order of arrest, and the claim is now made by the appellants that because the undertaking was for the benefit of Geldrich as well as •of Krause it cannot be enforced by Krause alone, for the reason that a recovery by him for the amount of the undertaking would ■leave Geldrich without any remedy upon it. But it does not •appear that Geldrich has any right of action on the undertaking. - -On the contrary, it appears that the order of arrest as to him was not affected by the order vacating it as to Krause, and the appellant’s counsel even offered to show on the trial that Rutherford had recovered a final judgment against Geldrich in the action in which the order of arrest was issued, thus practically conceding that Geld-rich had no cause of action on the undertaking. It thus appears that the only person having a cause of action under it, so far as -shown by the record here, is seeking to enforce it. More than this, the right to enforce the undertaking is by its express terms a several one in the obligees. The undertaking is to pay all damages which the defendants or either of them may sustain by reason of the

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arrest, if it was finally decided that Rutherford was not entitled to-the order of arrest.

I think, therefore, that the action was properly brought by Krause'alone, and that the judgment should be affirmed, with costs.

Pabkeb, P. J., concurred in result.

Judgment unanimously affirmed, with costs.