Foo Long v. American Surety Co. — 59 N.Y. St. Rep. 98

Majority

p. 98

Foo Long, App’lt, v. American Surety Company, Resp’t.

(Supreme Court, General Term, First Department,

Filed February 16, 1894.)

Headnote

1. Appeal—Undertaking—Surety.

To bind the' surety upon the undertaking to the general term, there must be an actual adjudication by the court of appeals.

2. Same.

An adjudication, which proceeds upon consent, establishes , nothing as to anybody except, perhaps, the parties to that record.

Appeal from a judgment entered on a verdict directed by the court in favor of plaintiff.

J. N. Tuttle, for app’lt; L. H. Arnold, Jr., for resp’t.

This action was brought upon an undertaking given by the defendant for one, Chu Fong, upon appeal to the general term upon a judgment in favor of the defendanttherein. At the general term this judgment was reversed, and a new trial ordered.. The plaintiff then appealed to the court of appeals from the order granting a new trial, giving a stipulation that, if the same were affirmed, judgment absolute might be tendered against him. After the appeal was taken and the case was on the calendar of the court of appeals, but long before it was reached the plaintiff and the defendant in that action and their attorneys executed, acknowledged and filed a consent entitled -in the court of appeals consenting to the entry of a judgment reversing the judgment of the general term and affirming absolutely the judgment of the circuit court, and, judgment having been entered accordingly, the plaintiff brought this suit against the present defendant on the undertaking. The defendant, in its answer, denied that the judgment at circuit had ever been affirmed within the intent and meaning of the undertaking, and set up in defense that said judgment was not rendered upon any argument or submission of said appeal, or upon any consideration by the court of appeals, but that the plaintiff had entered the judgment of affirmance by consent, with

p. 99

out the knowledge and to the prejudice of the defendant as surety, and that said acts of the plaintiff and defendant in that suit were collusive and fraudulent. Upon the case being tried, the learned j ustice excluded all the evidence to support the defense, and gave judgment against the defendant. Upon defendant’s appeal that judgment was reversed, and a new trial ordered. Upon the second trial the plaintiff put in evidence the judgment of the supreme court upon the remittitur, showing that the court of appeals had reversed the order on consent and evidence of demand and notice. The defendant then proved by the remittitur of the court of appeals that the parties had made the consent on January 9,1891 and that judgment in the court of'appeals on said consent was entered on January 12, 1891, months before the case was reached. The defendant then proved the circumstances of the indemnity given to it upon its execution of the undertaking sued upon. The insolvency of the defendant in the first action was established, and certain other facts proven. The court excluded all evidence on the part of the plaintiff to show that when he made the agreement consenting to the affirmance he thought that the defendant in the first action owned the $4 000 deposited with this defendant, and did not know that he had assigned it. The court directed a verdict for the defendant, and from the judgment thereupon entered, and from order denying motion for new trial, this appeal is taken.

The decision of this case upon the previous appeal as contained in 61 Hun, 595 ; 41 St. Rep. 873 , seems to dispose of the only question involved herein. It was there held that the presumption was that the decision of the general term was supported by the facts appearing before the court, and that presumption was not overcome by the proceedings afterwards taken in the court of appeals, for that court made no examination whatever into the merits of the appeal or the decision made by the general term, but the directions given by that tribunal were wholly founded upon the stipulation or agreement of the parties or their attorneys, and that no adjudication, therefore, was in fact made by which this presumption of the correctness of the determination of the general term was in the least affected or diminished in force; but the parties or their attorneys, with that presumption existing, entered into an^ agreement to set aside that decision, and to restore the judgment on the verdict which had been reversed by it. It was also held that the only way in which the parties could dispose of the reversal of the judgment by the general term so as to bind the surety upon the undertaking of the general term was by an actual adjudication by the court of appeals upon that question. The learned counsel for the appellant seeks to reargue the questions involved upon the appeal to the general term, but we do not under stand that the decision on that appeal can be impeached in this way. It is the law of this case, until it is reversed by an adjudication made in the usual course by the court of appeals ; and one made by consent, and therefore collusive, can have no such effect. It is a principle too familiar to need the citation of authorities that an adjudication which proceeds upon consent establishes nothing as to anybody, except, perhaps, the parties to that record. It can

p. 100

furnish no foundation for any remedy against any other person or against any other property. Earl of Bandon v. Becher, 3 Clark & F. 497; Gaines v. Relf 12 How. 472 ; Moses v. McDivitt, 88 N. Y. 62 . We do not think that further discussion is at all necessary in view of the previous decision.

The judgment and order appealed from should be affirmed, with costs.

All concur.

Cases cited

Gaines v. Relf 12 How. 472 SCOTUS p. 100
Moses v. McDivitt 88 N. Y. 62 N.Y. 1882-02-07 p. 100