Majority
p. 325Morris Steinbock, Resp’t, v. George A. Evans et al., App’lts. (New York Superior Court, General Term, Filed January 3, 1888.)
Headnote
1. Stipulation—Construction and effect of—Right to execution AGAINST THE PERSON.In an action based upon fraud by a stipulation entered into between the parties it was agreed that on payment of a certain sum of money the entry of judgment should be delayed until a date fixed, and that the action should be discontinued upon the payment of the amount for which it was brought with costs. The stipulation further provided that in case the plaintiff should enter judgment upon default made in either of the payments he should have the same right to enforce the judgment so entered by execution as if such judgment had been, entered upon the verdict of a jury. Held, that a judgment entered as thus’ provided was founded on the
p. 326O’Gorman, J.—This action is brought to enforce against defendants this obligation as sureties on a bail bond given by one Rogers in an action against him, in which the plaintiff here was plaintiff, and in which Rogers was arrested. The gist of that action was fraud on the part of Rogers,, whereby the plaintiff was induced to lend him money on a note. Rogers, in his answer, denied the fraud. When that case was reached for trial on the calendar, and about to be tried, a written stipulation was entered into between the respective attorneys, which stipulation is set forth at length in the defendant’s answer in this present action. The main question now is as to the true construction of that stipulation. ' . The defendants contend that it involves the abandonment by the plaintiff there of all charge of fraud against Rogers and the right to arrest him or to issue execution against his person in that action; and that all liability of the sureties there, who are the defendants in this present action,- thereby terminated. Rogers had, by a preceding clause of the stipulation, withdrawn his answer. The plaintiff had not withdrawn or modified his complaint "which charged fraud on the part, of
complaint alleging fraud, and with the same force and effect as if the fraud had been proved to the satisfaction of a jury, and carried with it the right to issue execution against the person of the defendant.
2. Bail—Sureties on bail bond—When delay of plaintiff does not EXONERATE.
Held, that the extension of time for the defendant to pay the claim in action and the delay on the part of the plaintiff in resorting to his legal remedies did not exonerate the sureties on a bail bond given on the defendant’s arrest.
3. Same—Sureties on bail bond are not exonerated by delay of plaintiff IN THE ABSENCE OF DEMAND THAT HE PROCEED AGAINST PRINCIPAL.
Held, that the sureties on a statutory bail bond have all the rights of sureties and are discharged if the creditor on their request that he should proceed against the principal refuses to do so, but that in the absence of such demand the mere extension of time to pay does not exonerate the sureties.
Appeal by defendants from a judgment entered upon the decision" at special term.
The following is the opinion delivered at special term:
I should, perhaps, be of that opinion, but for the following provision in the stipulation: “In case the plaintiff shall enter judgment herein upon the defaults in either of the payments above provided, he shall have the same right to enforce said judgment so entered, by execution, as he could have, had such judgment been entered, upon the verdict of a jury, in favor of the plaintiff in this action.” I cannot see any purpose in that provision unless it be to secure to the plaintiff his right to issue execution against the person of Rogers.
p. 327Rogers. A verdict in his favor would have involved a finding of fraud as the necessary ground and gist of the action, and, also, as a consequence, the right to issue execution against the person of Rogers. The plaintiff’s right to issue execution against the property of Rogers, existed of course, and needed no consent on the part of Rogers, inserted in the stipulation to preserve that right. The judgment actually entered, although entered by virtue of the stipulation, and by consent of the attorney of Rogers, was yet founded on a complaint alleging fraud, not denied by an answer of Rogers, and with the same force and effect as if the fraud alleged had been proved to the satisfaction of a jury. The disclaimer of fraud made by Rogers in the stipulation did not affect the judgment record in which the fraud stands affirmed, and admitted, because not denied. This, I think, is the true construction of the stipulation taken as a whole. It meant that the plaintiff was to lose none of his rights against Rogers by reason of the indulgence he extended to him as to time for payment, etc., and in case the terms on which that indulgence was granted were not complied with. The issue of execution against the person of Rogers was, therefore, justifiable and valid. By the terms of the stipulation, the time allowed Rogers to pay the plaintiff, was four months. Before issue of the execution against his person, Rogers placed himself outside the jurisdiction of this court. The defendants were not parties to or even aware of the stipulation when it was made, and made no request that plaintiff should proceed against Rogers with promptitude or without delay. The sureties on a statutory bail bond have all the rights of sureties, and are discharged if the creditor, on their request that he should proceed against the principal, refuses to do so. Toles v. Adee, 84 N. Y., 239 ; Remsen v. Beekman, 25 id., 556. But the mere extension of time to pay did not, in the absence of such demand, exonerate the sureties. Dueker v. Rapp, 67 N. Y., 471 . The sureties had always the right to protect themselves by surrendering their principal to the sheriff under section 591 of the Code. This case was tried by me without a jury, and, in my opinion, the plaintiff is entitled to judgment for the relief demanded in his complaint, with costs. • The following is the stipulation referred to in the above opinion: “The answer heretofore served in this action by the de
_ The next contention of the defendants is, that the stipulation involved an extension of time to Rogers for payment of the claim in suit, and a delay on the part of the plaintiff in putting his legal remedies into execution which exonerated the defendants here who were his sureties.
p. 328fendant is hereby withdrawn. The plaintiff hereby stipulates not to enter judgment herein until the 29th day of March, 1886. If the defendant shall on or before the 29th day of March, 1886, or before the plaintiff shall have entered judgment herein, pay to the plaintiff the sum of $3,000 on account of the note held by the plaintiff, then the plaintiff agrees not to enter judgment herein until the first day of July, 1886. If the defendant shall on or before the first day of July, 1886, or before the plaintiff shall have entered judgment therein, pay to the plaintiff the sum remaining due on said note with interest thereon and with the costs of this action, then the plaintiff will discontinue this action and will deliver to the defendant the said note. In case the plaintiff shall enter judgment herein upon the defaults in either of the payments above provided, he shall have the same right to enforce said judgment so entered by execution as he could have, had such judgment been entered upon the verdict of a jury in favor of the plaintiff in this action. The defendant recognizes by this stipulation his full liability to the plaintiff upon the said note, but hereby disclaims any admission of the truth of the allegations of fraud in the complaint contained, and enters into this stipulation solely as a means of providing security for the payments above provided for, and of providing a remedy in case of a default in the said payments. Dated New York, March 8, 1886.” The court below found that “the said agreement was made without the consent or knowledge of, and without notice to these defendants;” and that “the defendants in this action were not informed of said agreement at the time of its execution, nor did they since learn of it until the commencement of this action.” It also appeared from the findings, that prior to the entry of judgment, defendant went to Europe and there remained.
Stickney & Shepard, for app’lt; Randolph B. Martin, for resp’ts; James Patrick, of counsel.
The judgment should be affirmed, with costs, upon the opinion delivered by the learned judge at special term.