Bergmann v. Salmon — 53 N.Y. St. Rep. 236

Majority

p. 236

Francis A. H. Bergmann et al., Resp’ts, v. Hamilton H. Salmon et al., App'lts.

(Supreme Court, General Term, First Department,

Filed May 12, 1893.)

Headnote

1. Parties—Pleading—Injunction.

An action was begun against S. to restrain him from selling or collecting certain securities, and he was served with an injunction. Subsequently plaintiffs learned that S.’s father, who bore the same name, but was dead, was the person with whom the transaction in question had occurred. Held, that it was proper to allow the summons and complaint to be amended by bringing in the executors of the father, and continuing the injunction against them.

8. Same—Undertaking.

In such case, the plaintiffs’ undertaking, given when the injunction was first obtained, cannot be made to stand as good and sufficient as to the. ■ additional defendants.

Appeal from an order of special term bringing in new parties defendant, giving plaintiff leave to issue a supplemental or amended summons, and an amended complaint, and granting an injunction pendente lite.

Johnston & Johnston (Edward W. S. Johnston, of counsel), for app’lts; Gould & Wilkie (Lloyd McK. Garrison, of counsel), for resp’ts.

In August, 1882, the plaintiffs were owners of a, tontine policy of insurance, No. 167,187, issued by the New York Life Insurance Company. On that day they borrowed of Hamilton H. Salmon $1,000, for which they gave their note payable six months after date, and assigned to him, as security, said policy No. 167,187, and also another policy, issued by the AStna Insur

p. 237

anee Company, for $1,000, payable, in the event of the death of the plaintiffs, to Salmon. It is alleged that Salmon loaned but $753, and that the difference between that sum and the amount of the note was a usurious consideration for the loan. This note was four times renewed,upon the payment of alleged usurious considerations. There were two Hamilton H. Salmons father and son. The father died before the commencement of this action, which was begun against the son, for the purpose of restraining the defendant from selling, assigning or surrendering the policies, and for a judgment that the plaintiffs’ assignment of them be set aside, as void for usury. With the summons and complaint, an injunction restraining the defendant from transferring or collecting the policies was served. The defendant interposed an answer by which he denied each and every allegation contained in the complaint. (Subsequently the plaintiffs ascertained- that the transaction was with the father, who was dead, and not with the son, who had been sued, and that letters of administration had been granted upon his estate to Hamilton H. Salmon and Emily M. Salmon. They then moved for an order permitting them to amend the summons and complaint by bringing in the representatives of Hamilton H. Salmon, deceased, and that the injunction issued in the action be continued as against them, which was granted.

The order provided “that the plaintiffs’ undertaking, as provided herein, be, and the same hereby is, declared good and sufficient as to all these defendants.” In this we think the special term exceeded its power. This undertaking was given in an action brought against Hamilton H. Salmon individually, and not against the representatives of his father’s estate. The undertaking upon which the injunction was granted was entitled as the action was entitled before the amendment was granted, by which the sureties undertook to indemnify the defendant so enjoined from damages which he might sustain by reason of the injunction. They did not undertake nor agree to indemnify the additional defendants who were brought in by the amendment from any damages which they might sustain by. reason of the granting of the -order, and no action of this court could make them liable beyond the terms of their contract. We think that the order permitting ■the summons and complaint to be amended by bringing in the additional parties was right. So, also, was that part of it restraining them from selling or disposing of the policies of insurance. But that part which provided that the undertaking should stand as security for the new defendants brought in cannot be sustained. That part of the order which provides “ that the plaintiffs’ undertaking, as provided herein, be, and the same hereby is, declared good and sufficient as to all these defendants,” is reversed ; but it is in all other respects affirmed, provided that the plaintiffs, within ten days after service of a copy of the order to be entered on this decision, file a new undertaking in this action, in the form prescribed by the Code, to be approved by the supreme court, or a judge thereof, with no costs to either party on this appeal.