Clough v. United States Fidelity & Guaranty Co.

Headnote

Undertaking — sureties — debtor and creditor — action to recover upon undertaking given to secure return of judgment debtor to custody of sheriff — sufficiency of demand for surrender.

Clough v. United States F. & C. Co., 215 App. Div. 790 , affirmed.

Appeal from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered January 11, 1926, affirming a judgment in favor of plaintiff entered upon a verdict. The action was to recover upon an undertaking given October 16, 1918, whereby defendant agreed that if a judgment debtor did not surrender into the custody of the sheriff within fifteen days after written demand, defendant would pay to the attorney of plaintiff’s assignor five thousand dollars, waiving all technical defenses. The assignor from time to time made demand upon defendant to surrender the judgment debtor but upon payment of small amounts on the judgment withdrew such demands. Finally in April, 1923, the judgment debtor disappeared and this action was brought to recover on the undertaking. The defenses were that the undertaking given in 1918 required

a reasonable demand to be made for the return of the judgment debtor to custody, and that a demand made in April, 1923, was not a reasonable demand, nor a demand made within a reasonable time; that there was no evidence that plaintiff had sustained any damage because of the failure of the judgment debtor to return to custody in compliance with the demand of April 27, 1918; and that on April 27, 1923, the time within which he could -be lawfully arrested had expired.