Furber v. McCarthy — 36 N.Y. St. Rep. 212

Majority

p. 212

Arthur Furber, Resp’t, v. Alexander J. McCarthy et al., App’lts.

(Supreme Court, General Term, First Department,

Filed January 13, 1891.)

Headnote

1. Arrest—Undertaking—Liability of sureties.

The undertaking given upon procuring an order of arrest includes the costs awarded to the defendant on a motion for a new trial and an appeal from order denying the same; and hence, in an action on the undertaking, the sureties are entitled to credit for such costs paid by their principal.

2. Same—Interest.

In such an action interest on the amount of the judgment recovered by the plaintiff in the action in which he was arrested is properly allowable.

Appeal from a judgment entered upon the decision of Justice Beach, before whom the cause was tried without a jury upon the admitted facts.

F. P. Johnson, for app’lts; Arthur Furber, in person, resp’t.

The appellants claim that the conclusions of law and judgment rendered are not justified by the facts found. The action was brought upon an undertaking which was given on the arrest of the defendant in the action and which was executed by the defendants. The defendant in the action in which the undertaking was given succeeded at the trial and judgment was rendered in his favor for $122.45 costs, June 1, 1883. The plaintiffs in that action moved for a new trial and the motion was denied, with costs. An appeal from this order was taken, which, upon due consideration, was affirmed. The amount of costs awarded to the defendant in the proceeding was $84.98. These were paid to the plaintiff, who was then the plaintiff’s attorney, together with the costs of the judgment, amounting in all to $210.94.

The court held on the trial that the appellants were entitled to be credited, upon their liability 'On the. undertaking, with the amount of costs included in the judgment claim, $122.45, but not for the additional amount awarded to the defendant in arrest on the motion for a new trial and the appeal therefrom, with the in-, terest paid by them, amounting to $88.49. The court also rejected a note for $250, made by the defendant in arrest then before it, who was then, and still is, totally insolvent, and which note and the right of action thereupon were assigned to the appellants, the sureties on the undertaking. The claim of the defendant in arrest, springing from the undertaking, was assigned to the present plaintiff and this action commenced on the 18th of November, 1880.

The appellants claim that they were entitled to set off the note to the extent of the liability on the undertaking. But the court

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■upon a former decision of the general term in this case held otherwise, and it is not intended on this appeal to reconsider that question. The condition of the undertaking is that if the defendant in the action recover judgment, or it is finally decided that the plaintiffs are not entitled to the order of arrest, the plaintiffs will pay all costs which may be awarded to the defendant, and all damages which he may sustain by reason of the arrests in said action, not exceeding the sum of $250.

The question whether the additional costs mentioned should be deducted from the amount of the defendant’s responsibility on the undertaking has substantially been disposed of. Baere v. Arm strong, 26 Hun, 19 . The undertaking was that the plaintiffs would pay all such costs and damages that might be awarded ; which means all the costs that might legitimately be contracted during the progress of the action, and this includes the application for a new trial, which, the sum of the costs amounting to eighty-four dollars and ninety-eight cents, resulted from that proceeding. The charge is neither unusual nor extraordinary, and, therefore, embraced within the language of the undertaking, though not independent of it. The question decided in the case cited was that the defendants had a right to prove that their principal paid the costs awarded upon a motion to discharge the attachment, and upon two appeals. The evidence was rejected, and exception taken, and upon that exception, and for nothing else, the judgin favor of the plaintiff was reversed.

The refusal to credit, therefore, the sum of eighty-four dollars and ninety-eight cents upon the undertaking was erroneous.

The interest seems to have been properly allowed. The condition of the undertaking, as we have seen, is that if the defendant in the action recover judgment therein, the plaintiffs will pay all costs which may be awarded to the defendant and all damages which he may sustain by reason of the arrest in the action not exceeding $250. When the judgment was entered, therefore, the liability of the sureties was established and the interest became a legitimate item of damage. Brainerd v. Jones, 18 N. Y., 35 . Comstock, J., said in that case: “The rule has often been laid down in general terms that the sureties are not liable beyond the penalty of the bond in which their obligation is contained. But on a careful examination of the reason and justice of the rule it will be found inapplicable to a question of interest accruing after they are in default for not paying according to the condition of the bond.” “In this case,” continued the learned justice, “the defendant’s bond was conditioned that Bamsdell should pay whatever sum might be recovered against him in a certain action of replevin. If the sum recovered against Bamsdell had been greater than the penalty of the bond such penalty would nevertheless have been the measure of their liability at that time. But on the recovery of the judgment their obligation was mature. Its utmost extent then was the penalty under which they had bound themselves for the payment by Bamsdell. But after that they were in default and during the continuance of that default interest is due from them as in any other case where money is not paid where

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the creditor becomes entitled to it." The case of Poillon v. Vol kenning, 11 Hun, 385 , is not antagonistic to this doctrine. It is in accord with it. There it was provided that the damages for which the sureties became responsible should be ascertained by a reference or otherwise as the court should direct; and it was held that the sureties were liable for interest on the amount of damages from the time only that they were ascertained in the'manner provided for by the undertaking and not in excess of that.

For these reasons the judgment must be reversed and a new trial ordered, without costs of this appeal to either party.

Yaw Brunt, P. J., and Daniels, J., concur.