Dunham v. Ringrose — 25 N.Y.S. 454

Majority

p. 454

(72 Hun. 300.)

DUNHAM v. RINGROSE et al.

(Supreme Court, General Term, First Department.

October 13, 1893.)

Headnote

Judgment—Opening Default.

A judgment by default having been entered, defendant moved to open the default, and for a stay until final determination of an equitable action by defendant against plaintiff, involving the same matters as defendant

p. 455

had set up in his answer. The default was opened, and a preliminary stay was granted, and afterwards vacated. Judgment by default was again entered against defendant, and another preliminary stay was granted, and the default was opened. In the mean time the equitable action had been tried, but no decision rendered. A third default was suffered, and a stay was again granted, but before any further proceedings could be had the complaint in the equitable action was dismissed. Eeld, that a refusal to open the third default would not be disturbed on appeal.

Appeal from special term, ¡New York county.

Action by Sumner T. Dunham against John Ringrose and Israel B. Van Housen. From an order denying a motion to open a judgment by default, defendants appeal

Affirmed.

The complaint is as follows:

The plaintiff above named complains of the defendants above named, and alleges upon information and belief:

First. That heretofore, and on or before the 1st day of April, 1890, an action was pending in the supreme court, in the county of New York, in which James E. Taylor was plaintiff, and Andrew K. Smith, Martin Pinney, Jay K. Smith, Julius Stickney, and another were defendants, upon a promissory note made by the said above-named defendants in that action, dated May 14, 1889, payable four months after date to Esther A. Rose or bearer, who indorsed the same, and the same was then held and owned by the said James B. Taylor, as set out in the pleadings in said action, to which reference is hereby made as a part of this complaint.

Second. That, the said defendants, having desired to appeal from an order made in the said action denying a motion made on behalf of the said defendants'above named to change the venue of said action from the county of New York to the county of Steuben, duly perfected such appeal to the general term of the supreme court in the first department.

Third. That said action having been placed on the short-cause calendar, in the county of New York, for trial, by order of the supreme court therein, on a contested motion, it was reached on or about the 25th day of March, 1890, and tried, and an inquest taken therein, and judgment directed to be entered in favor of the plaintiff and against the said four named defendants in that action, for the amount of the said note, with interest thereon, besides the costs and disbursements of that action, by Mr. Justice O’Brien, before whom the said action was tried, and a jury.

Fourth. That upon said trial and inquest the said four last named defendants, by their attorneys and counsel, applied for a stay, and to have the said inquest set aside pending the hearing and determination of the said appeal at general term.

Fifth. That thereupon the said Mr. Justice O’Brien, upon the request and application of the said defendants in that action, made an order directing and providing, among other things, that in case said Andrew K. Smith, Martin Pinney, Jay K. Smith, and Julius Stickney should give an undertaking, on or before the 3d day of April, 1890, to the said James E. Taylor, plaintiff in that action, executed by at least two sufficient sureties, to be freeholders and residents of the state of New York, that the said defendants would pay any judgment that might be recovered against them, the said defendants above named in that action, or against any of them in said action so then pending, that the said inquest should be vacated and set aside.

Sixth. That thereupon the said four defendants so above mentioned impleaded in that action, and the defendants John Ringrose and Israel B. Van Housen in this action, duly on or about the 1st day of April, 1890, made and executed an undertaking in said action pursuant to the said order and to the statute in such case made and provided, for a valuable consideration, and for the purpose of having said inquest set aside, and for the purpose and with the intent to stay the proceedings of the plaintiff in that action until

p. 456

the hearing and determination of same appeal so taken and then pending to and by the general term in said first department, of which said undertaking the following is a copy:

“Supreme Court, City and County of New York.

“James E. Taylor vs. Andrew K. Smith; Martin Pinney, Jay K. Smith, Julius Stickney, and another.

“Whereas, an action is pending in the New York supreme court, wherein James E. Taylor is plaintiff and Andrew K. Smith, Martin Pinney, Jay K. Smith, Julius Stickney and another are defendants; and whereas, at a circuit of said court held in and for the city and county of New York on the 28th day of March, 1890, an inquest was taken by the plaintiff, and said court having ordered that in case said Andrew E. Smith, Martin Pinney, Jay K. Smith, and Julius Stickney should give an undertaking, on or before the 3d day of April, 1890, to the plaintiff, executed by at least two sufficient sureties, to be freeholders and residents of the state of New York, that the said defendants will pay any judgment that may be recovered against them, or any of them, in said action, the said inquest should be vacated, and the said defendants desiring to have said inquest vacated and set aside: Now, therefore, we, Andrew K. Smith, Martin Pinney, Jay IC. Smith, Julius Stickney, "Israel B. Van Housen, and John Ringrose, of Prattsburgh, Steuben county, New York, do hereby jointly and severally undertake that the said Andrew IC. Smith, Martin Pinney, Jay K. Smith, and Julius Stickney will pay any judgment that may be recovered against them in the above entitled and described action, or any of them, including costs and damages, not exceeding one thousand dollars.

“Andrew K. Smith. Julius Stickney.

“Martin Pinney. I. B. Van Housen.

“Jay K. Smith. John Itingrose.

“State of New York, County of Steuben—ss.: John Ringrose, one of the subscribers to the foregoing undertaking, being duly sworn, says that he is a resident and freeholder within this state, and is worth the sum of two thousand dollars over all the debts and liabilities which he owes or has incurred,-and exclusive of property exempt by law from levy and a sale under an execution. John Ringrose.

“Sworn to before me this 1st day of April, 1890.

“J. A. Bennett, Justice of the Peace."

“State of New York, County of Steuben—ss.: Israel B. Van Housen, one of the subscribers to the foregoing undertaking, being duly sworn, says that he is a resident and a freeholder within this state, and is worth the sum of two thousand dollars over all the debts and liabilities which he owes or has incurred, exclusive of property exempt by law from levy and sale under an execution. I, B. Van Housen.

“Sworn to before me this 1st day of April, 1890. .

“J. A. Bennett, Justice of the Peace.”

“County of Steuben—ss.: I certify that on this first day of April, 1890, before me personally appeared the above-named Andrew K. Smith, Martin Pinney, Jay K. Smith, Julius Stickney, Israel B. Van Housen, and John J. Ringrose, to me personally known, and known to me to be the individuals described in and who executed the above undertaking, and severally acknowledged that they executed "the same.

Seventh. That on or about the 2d day of April, 1890, the said undertaking so made and executed as aforesaid was duly delivered to.the plaintiff by the said defendants.

Eighth. That the said inquest was thereupon vacated, and the plaintiff’s proceedings stayed, and the issue sent back to short-cause calendar' by order made by Mr. Justice O’Brien, pending said appeal to the general term, as aforesaid, to the which said order reference is hereby made as a part of this complaint.

p. 457

Ninth. That the said general term in the first department duly affirmed the decision of the justice at special term denying the motion so made by the four last named defendants to change the venue in said action, as aforesaid, and such proceedings were taken and had in said action that the plaintiff' duly recovered a judgment in that action and in the action named and specified in said undertaking, on or about the 21st day of July, 1890, for the sum of eight hundred and fifty-four dollars and eighty-six cents damages and costs against the said defendants Andrew K. Smith, Martin Pinney, Jay K. Smith, and Julius Stickney, defendants in said action as aforesaid, and the same was duly docketed and entered in the office of the clerk of the county of New York for the said sum of $854.86, as will fully appear from the judgment roll in said action, and the several "orders made and entered therein, on file in the office of the clerk of New York county, which are referred to as a part of this complaint, of which judgment a transcript was filed and said judgment docketed in the county of Steuben, where the said four last named defendants then and now reside.

Tenth. That no part of said judgment has been paid by the said defendants, or any of them, although often requested, and payment demanded more than ten days prior to the commencement of this action of the defendants .herein.

Eleventh. That due notice of the entry of said judgment has been given to-Jay K. Smith, Esq., attorney for the appellants on said appeal, more than ten days prior to the commencement of this action, and to the said defendants in this action, and formal demands made for the payment of the same, as promised and provided in said undertaking, but the defendants have neglected' and refused to pay the same, or any part thereof, and are jointly and severally indebted to the plaintiff thereunder in the sum of eight hundred and fifty-four dollars and eighty-six cents, with interest thereon from July 21,1890.

Twelfth. The plaintiff, further complaining of the said defendants, alleges that heretofore, and on or about the 24th day of June, 1891, the said James E. Taylor, for a valuable consideration, duly sold and transferred the said undertaking hereinbefore set out, and the said judgment' so hereinbefore described, unto this plaintiff, who then became and now is the lawful owner and holder thereof. That there is now justly due and owing from the said defendants, jointly and severally, to the plaintiff, upon the said undertaking, so made and executed as aforesaid, the sum of eight hundred and fifty-four dollars and eiglity-six cents, with interest from July 21, 1890, for which the plaintiff demands judgment, besides the costs of this action, against the defendants, jointly and severally.

The answer is as follows:

(1) The defendants above named, for answer to the complaint herein, admit all the allegations contained in folios 1, 2, and 3. They also admit the execution of the bond or undertaking set forth in the complaint, and the rendí tian of the judgment therein set forth. The defendants further admit that a notice of the entry of the judgment mentioned in the complaint was served on them ten days prior to the commencement of this action, but deny that they were indebted to the plaintiff, or any other person, by virtue of the said undertaking. The defendants, further answering, deny that no part of the said" judgment has been paid, and deny that they have any knowledge or information sufficient to form a belief as to all the other allegations in said complaint contained not hereinbefore admitted or denied.

(2) The defendants, further answering, allege that on the 27th day of August, 1880, a stipulation apd agreement was made in writing, and delivered, between the plaintiff in the alleged judgment, James E. Taylor, and ■ the defendants therein, which reads as follows:

“N. Y. Supreme Court.

“J. Edmund Taylor vs. A. K. Smith, Julius Stickney, and Jay K. Smith.

“Judgment, July 21, 1890, $754.84.

"It is'stipulated that proceedings on the above judgment will be stayed,, provided that the sureties on a certain bond given to open default, John Ring-rose and Israel B. Van Housen, consent in writing to March 15, 1891, and at

p. 458

that time, if A. K. Smith shall quitclaim all his interest in the §1,900 mortgage and judgment, and fails to pay James B. Taylor the amount of said judgment above stated, then J. E. Taylor to assign the same to A. K. Smith or his order, or, if Smith pays said judgment, he is to have an assignment..

“Dated August 27,1890. Clark Bell, Biff. Atty.

“Jay K. Smith, Atty. for Defts.”

The defendants further allege that the judgment mentioned in said stipulation refers to the judgment set forth in the complaint, and that the names J. Emmett Taylor and James E. Taylor refer to and describe one and the same person. The defendants further allege, on information and belief, that after said stipulation was made, or about that-time, and before the pretended and alleged assignment of said judgment was made to the plaintiff, the said Andrew K. Smith, in pursuance of the agreement of James E. Taylor or J. Emmett Taylor to assign over to him the said judgment, did fully assign and quitclaim over to said James E. Taylor his entire interest, he being the sole owner in the §1,900 mortgage and judgment mentioned in the said agreement, and he delivered the same to said James E. Taylor, who then and there accepted the same, and agreed to assign over to said Andrew K. Smith the said judgment, as provided in the writing hereinbefore set forth. The defendants further allege, on information and belief, that at the time of the pretended assignment of said judgment over to the plaintiff herein, the said James E. Taylor had been fully paid all that was due him on said judgment, and that Andrew It. Smith, one of the defendants in said judgment, was the lawful owner thereof, and entitled to an assignment of the same. Wherefore the defendants demand judgment dismissing the complaint, with costs.

Argued before O’BRIEU, FOLLETT, and PARKER, JJ.

Jay K. Smith, for appellants.

Clark Bell, for respondent,

If the rule of law that there should be an end to litigation is not an obsolete one, then should it be applied to the facts here appearing. The defendants’ attorney, who was the principal debtor, has, by procuring the substitution of sureties, the giving of an undertaking, the assignment of a mortgage as collateral, and above all by dilatory motions and an equity action, succeeded in preventing the collection of a debt, originally evidenced by a promissory note given for value, and which, after a protracted litigation, carried twice to the general term on appeals from orders, it was adjudged he should pay. Upon one of such appeals the undertaking w.as given by the defendants which is the subject of this action. With a final judgment in one’s favor, secured by an undertaking upon appeal, and after exhamsting the remedy by execution against the judgment debtors, it would seemingly present a case where a creditor might reasonably expect satisfaction of his claim against the sureties. Hot so in this instance, for the defendants’ attorney, having but sharpened his appetite in the. first action, found ample food to sustain him in a guerilla warfare which he has successfully waged for more than two years. Having tired out Taylor, the original and judgment creditor, the latter assigned the judgment and undertaking to this plaintiff, for what is sworn to by the latter to have been a valuable consideration. In this suit against the sureties on the undertaking, the execution of the undertaking, the recovery of judgment, and no

p. 459

tice to defendants are admitted; but by way of defense it is claimed that in a transaction between Andrew K. Smith, one of the sureties on the original note, and Taylor, the latter had extended the judgment, on receiving an assignment of a mortgage •as additional security, to March 14, 1891, when, upon payment of the claim, the judgment and mortgage were to be reassigned to Andrew K. Smith, and, if not paid in cash, that the mortgage was to be accepted by Taylor as a satisfaction of or as a consideration for the assignment of his judgment. In passing, it may be said cash was not paid on March 14, 1891. The case was placed on the short-cause calendar for trial, and, when reached, the defendant not appearing, a judgment in plaintiff’s favor was had. Thereupon defendants moved to open the default, and asked for 'a stay until the final determination of an action brought by Andrew K. Smith to compel an assignment of the judgment upon the same state of facts set up by way of defense in this action. So much of the motion as asked for a stay was denied, but the default was opened upon terms, the judge ordering the case again on the short-cause calendar for trial. Upon a motion to bring in this plaintiff as a defendant in the Smith suit, and for an order enjoining the trial of this action until the determination of that, a preliminary stay was granted, but upon the hearing, it was vacated, and an order was made making Dunham (this plaintiff) a defendant in that action, but without prejudice to this action. Again placed on the short-cause calendar, this action was again reached for trial, but, defendants absenting themselves, plaintiff recovered judgment in May, 1892. A motion to open this default was made, and another preliminary stay obtained. Again the stay was vacated, but the default opened upon terms. The explanation of defendants’ course is to be found in the fact that by suffering these defaults and by obtaining intermediate temporary stays they obtained what they sought, and what the court had refused them, viz. a trial first of the Smith suit against this plaintiff and Taylor. Though tried, no decision was given, and, though three judges had decided that this should not prejudice this plaintiff’s action against these defendants, another temporary stay was obtained until the hearing of a motion returnable December 27, 1892. Dates are now important. This cause was again reached for trial on December 16, 1892, and was postponed upon ■an express stipulation by defendants that it should be tried on a judgment suffered on the 23d. On December 23d, no one appearing for defendants, a default was taken, and for the third time a judgment entered, and thereafter, on the same day, the stay upon the motion made returnable on the 27th was served on plaintiff’s attorney. This prevented any further action until January, 1893, when the decision in the Smith suit was handed down, dismissing the complaint on the merits. Thereupon this plaintiff, as he had the right to do, proceeded to enforce his judgment by issuing execution, but before he obtained a return from the sheriff the de fendants obtained another stay, and made another motion to open

p. 460

the default of December 23d; and it is from a denial of this last, motion that this appeal is taken.

We have thus gone over the successive steps taken in the two. actions because they render further comment unnecessary. The same attorney who, as said, was the principal debtor, appeared throughout, and is entitled to the credit of having successfully held off this plaintiff for two years in a simple action that could be tried in an hour, even if we assume that the transactions between Andrew K. Smith and Taylor were available in this action between these parties. Having been beaten in the Smith equity suit, he can, as was therein suggested, if unsuccessful on his appeal, obtain 'an adequate remedy at law. But whether he can or not, he has exhausted his remedies in this action, and we think .that the discretion was wisely exercised by the judge at special term in denying the motion to open the last default, and that the order appealed from should be affirmed, with $10 costs and disbursements. All concur.