Barker v. Crawford — 33 N.Y. St. Rep. 1000

Majority

p. 1000

Benjamin Barker, Jr., Assignee, v. Erastus Crawford, Resp’t. Anson O. Stevens, App’lt, and Albert J. Adams, Resp’t.

(Supreme Court, General Term, First Department,

Filed October 24, 1890.)

Headnote

Judgment—Satisfaction—Payment.

Application to satisfy a judgment recovered upon undertakings was made by one of the sureties on the ground that it had been paid by O., who was primarily liable. This was denied by 0., and by the other surety, who swore that lie purchased it for the accommodation of 0., to secure equality of liability between himself and the other surety. Held, that the application was properly denied.

p. 1001

Appeal from order denying motion to satisfy judgment

jt'hos. M. Tyng, for app’lt; Jacob Fromme, for resp’ts.

The judgment was recovered on undertakings, or bonds given in an action in the courts of the United States. The application to satisfy it was made on the affidavit of the defendant’s attorney, and on behalf of one of the sureties, Anson 0. Stevens, that it had been in fact paid by the defendant, Erastus Crawford, who was primarily liable to discharge the obligations. And the affidavit of Mr. Shoudy, one of the plaintiff’s attorneys, confirmed this statement

But the affidavit of Mr. Crawford positively denies these statements. And so does that of Mr. Adams, who swears that he purchased the judgment with his own money, and as an accommodation to the defendant Crawford, for the object of securing equality of liability between himself and the other surety. And the affidavit of Mr. Fromme sustains the fact that the purchase was made by Mr. Adams, and that the judgment was not paid. Upon this evidence the court could not order the judgment to be satisfied. And the motion was therefore denied without prejudice to an action. The order was right and should be affirmed, with ten dollars costs and the disbursements on the appeal.

Van Brunt, P. J., and Brady, J., concur.