Aparicio v. New England Equitable Insurance

Headnote

Aparicio v. New England Equitable Ins. Co., 177 App. Div. 551 , affirmed.

Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered April 3, 1917, affirming a judgment in favor of plaintiff entered upon an order of Special Term granting a motion by plaintiff for judgment in his favor upon the

pleadings. The plaintiff herein sued one Arteaga and one Richards and in said action replevied certain specific property. In the course of that action the defendant Arteaga gave a re-delivery bond upon which bond the defendant herein was surety. Judgment was entered in that action in favor of the plaintiff herein, and an execution on said judgment was duly issued and returned unsatisfied. The plaintiff then brought the present action to recover on the re-delivery bond. The answer of the defendant admitted the material allegations of the complaint and attempted to set up by way of affirmative defense and counterclaim that the said judgment was procured by the perjury of the plaintiff herein. The plaintiff demurred to this defense and counterclaim.