Sutorius v. North — 36 N.Y. St. Rep. 873

Majority

p. 873

Edward Sutorius, App’lt, v. Isaac F. North, Resp’t.

(New York Common Pleas, General Term,

Filed March 2, 1891.)

Headnote

11 Undertaking—Arrest—Liability of sureties as to costs.

The costs intended to be secured by an undertaking given pursuant to § 559 of the Code are not the costs of the action for which the defendant in the event of his success may recover judgment, but only such costs awarded to him as accrue directly from the arrest, or in proceedings in the action, or otherwise, necessitated by such arrest.

2. Same—Pleading.

Hence, in an action upon such an undertaking a defense of payment may properly be stricken out as sham, where it appears that the only payment made was of the general costs of the action.

Appeals from the following orders made at special term: 1st. An order denying plaintiff’s motion to strike out as sham the defense of payment. 2nd. An order denying plaintiff's motion that the answer be made more definite and certain. 3d. An order denying plaintiff’s motion for a further bill of particulars concerning the alleged payment.

Davis & Chapin, for app’lt; Daniel D. Sherman, for resp’t

The learned counsel for respondent appears to have misconceived the provisions of § 559 of the Code of Civil Procedure, regulating the terms of the undertaking required as a condition precedent to the granting of an order of arrest. The costs intended to be secured by the undertaking are not the costs of the action for which the defendant in the event of his success may recover judgment, but only such costs awarded to the defendant as accrue directly from the arrest, or in proceedings in the

p. 874

action, or otherwise, necessitated by such arrest. In the view, therefore, which we entertain concerning the provisions for costs, the defense of payment in this action must be considered sham. The answer admits that in the suit of Bartlett against Sutorius, the defendant recovered judgment against the plaintiff for costs of the action, exceeding $250, and alleges that these costs have been paid; but it does not appear that any part of the costs so paid had accrued to the defendant in that action from the arrest or in any proceedings growing out of it.

The plaintiff’s affidavit, on the motion in this action to strike out the defense of payment as-sham, is not controverted in any particular by the defendant, and conclusively shows that the only payments made by Bartlett were for the general costs of the action- awarded to the defendant in Bartlett v. Sutorius, It necessarily follows that the allegation of the answer, to the effect that Bartlett has paid damages in an amount exceeding the sum specified in the undertaking, is false and untrue, because such payment was not made on account of the undertaking, nor in satisfaction of any indebtedness secured thereby, nor of any liability thereunder, and constituted no defense, therefore, to an action upon it. The motion to strike out the defense of payment as sham should, therefore, have been granted, and had this been done the subsequent motions to make the answer more definite and certain and for a further bill of particulars respecting the defense of payment would have been rendered unnecessary.

The order denying plaintiff’s motion to strike out the defense of payment as sham is reversed, and the motion is granted.

The remaining orders appealed from are affirmed. ¡Neither party to these appeals to have costs against the other.

Allen, Bischoff and Pryor, JJ., concur.