Thompson v. Hawke — 27 N.Y. St. Rep. 132

Majority

p. 132

Jennie M. Thompson el al., Exr’s, Appl’ts, v. Edward H. Hawke, Impleaded, Resp’t.

(Supreme Court, General Term, First Department,

Filed November 7, 1889.)

Headnote

Bonds—Death of obligob does not authobize altebation of condition.

Plaintiffs’ intestate,' as a condition of a substitution of attorneys, was required to give a bond conditioned to pay defendant such sum as he should recover by action for his services. This was given, and the surety indemnified. Held, that an action to require defendant to present his claim to ■ the executors, or be debarred from bringing suit on the bond, could not he maintained; that the court had no power because of indemnification of the surety, and the death of the obligor, to add additional provisions to the contract.

Appeal from a judgment sustaining a demurrer to the complaint.

Lewis Sanders, for app’lts; Lawton & New, for resp’t,

In April, 1886, John B. Thompson, plaintiffs’ testator, as a condition for substituting another attorney in place of his attorney, the defendant, Edward H. Hawke, in a suit then pending in the court of common pleas brought by Richard J Gapron and another, was required to give a bond, with a real estate surety, in the penal sum of $10,000, to well and truly pay said Hawke, his heirs or assigns, such sum of money as said Hawke may recover in any action which may be brought by him against the said Thompson for professional services and disbursements in the suit of Gapron and Merriam against Thompson. Thompson gave the bond, with the defendant Danziger as his surety, on the 21st of May, 1886. To secure Danziger, Thompson pledged with him $10,000 in the bond of the Columbus & Indianapolis Central R. R. Go. Thompson died on the 12th of November, 1886, and plaintiffs were appointed his executors.

In March, 1889, two years and a half after Thompson’s death and nearly three after giving the bond, plaintiffs requested the defendant, Hawke, to present his claim against their testator’s estate, and on the 26th of March, 1889, plaintiffs commenced advertising the usual executor’s notice for the presentation of claims, and on the 11th of April they commenced this action to require the defendant, Hawke, within three months from the entry of the decree herein, to present his claim for services in the Gapron and Merriam case, or to be debarred from bringing suit on the bond, because, as plaintiffs allege, unless Hawke should present his claim or bring an action to recover the amount thereof, they, will be unable to distribute the assets of the estate in accordance with the will, or to obtain from said Danziger the railway bonds pledged to him as security.

It seems to be conceded by the learned counsel for the appellant that Thompson living this action could not be maintained, but Thompson dead that equities arise in the plaintiffs’ favor out of their trust relation to the property of the deceased^ and the statutes governing claims against executors. But it is difficult to see how the court can step in and add additional or other pro

p. 133

visions to the contract between Thompson and Hawke simply because Thompson has died.

Simply because Thompson indemnified his surety upon the bond in no way affected the right of Hawke under his contract He was not a party to such indemnification, and had nothing to do with it. That was a private arrangement between Thompson and his surety.

The statutes have fixed Hawke’s right under his contract, and certainly this court cannot intervene and impose new conditions which the court under whose ruling the contract was given has not imposed. Thompson having accepted a favor upon the condition of making this contract, simply because he has died his estate cannot claim exemption from the full liability assumed by him.

The judgment appealed from should be affirmed, with costs.

Daniels and Brady, JJ., concur.