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Gifford v. Rising

35 N.Y. St. Rep. 849 Court N.Y. Gen. Term Decision date 1891-01-23 English

Delivered by Corlett, J.

Contents

Majority

p. 849
Reuben W. Gifford, Rec’r, App’lt, v. Aretas W. Rising, Resp’t.
(Supreme Court, General Term, Fifth Department,
Filed January 23, 1891.)

Headnote

Subrogation—Sureties on appeal.
Where, pending an appeal, with the consent of the sureties on the bond given to stay execution, a portion of the property levied upon is lost, the sureties, nevertheless, on being compelled to pay the judgment, are entitled to be subrogated to the extent of the amount so paid, less the amount of the loss.
Appeal from an order of the special term entered in Niagara county, subrogating Ely C. Eising and Lodema G. Eising, sureties on an appeal bond, to the extent of $584.
Henry M. Davis, for app’lt; George D. Judson, for resp’t.

On the 13th day of July, 1889, the appellant recovered judgment against the defendant for nearly $600, besides costs. The defendant appealed from the judgment to this court, and an undertaking was executed to stay execution upon appeal by Ely G. and Lodema 0. Eising, as sureties. • Before this undertaking was made, execution had been issued upon the judgment and personal property levied upon to the amount of nearly $600. The judgment was affirmed on appeal, and the whole judgment when finally entered was $1,092.33.

With the consent of the sureties, $400 of the personal property was lost, and the balance was applied on the judgment. Deducting the loss and the amount paid, there remained unpaid $584.00 with interest The sureties paid the judgment and applied to be subrogated The special term granted this application to the extent of the amount paid, less the loss. The plaintiff appealed to this court from the order as made.

Ordinarily, sureties, upon the payment of a judgment, are entitled to be subrogated Dundee National Bank v. Wood, 30 N. Y. State Rep., 607.

No reason is seen why the sureties in the present case should not be subrogated to the extent allowed by the special term.

The ord^r appealed from must be affirmed

Dwight, P. J., and Macomber, J., concur.