Smith v. National Surety Co. — 62 N.Y.S. 1105

Majority

p. 1105

SMITH v. NATIONAL SURETY CO.

(Supreme Court, Appellate Division, Fourth Department.

December 29, 1899.)

Headnote

Principal and Surety—Subrogation.

Where a surety paid a judgment against a principal in full, he was entitled to require plaintiff to transfer to him the judgment against the principal, and any security he might have for its payment.

Appeal from special term, Monroe county.

Action by Frank Smith against the National Surety Company. From an order in favor of defendant ( 59 N. Y. Supp. 789 ), plaintiff appeals. ■

Affirmed.

Argued before HARDIN, P. J., and SMITH, ADAMS, McLENNAN, and SPRING, JJ. •

J. W. Stebbins, for appellant.

Foote & Havens, for respondent.

The plaintiff’s judgment has been paid in full, and equity requires that he should transfer to the defendant the judgment, and whatever security he has for its payment. We do not, however, decide that the judgment or the Kalb agreement is enforceable by the defendant. The parties to be affected by a decision of that kind are not all before the court. If the surety company seeks to enforce the judgment or the agreement against either of these parties, whatever defense^ they have can be interposed.

Orders affirmed, with $10 costs and disbursements.