Christal v. Kelly — 31 N.Y. Sup. Ct. 155

Majority

p. 155

CHARLES CHRISTAL and WILLIAM B. MARSH, as Executors, etc., of ALEXANDER HOAG, Deceased, Respondents, v. BERNARD KELLY, Appellant, Impleaded with CORNELIUS A. BUNNER.

Headnote

The surety to an undertaking given to release property from, an attachment — can not otyeot to an a/mencknent of the summons and complaint, Try consent, in the original action.

In an action upon an undertaking given to secure the release of property belonging to a firm, from an attachment issued in an action commenced against two of the partners, the surety cannot set up as a defense that the summons and complaint in the original action were, after the giving of the undertaking and before the entry of the judgment, amended, by consent, by the addition of the > name of a third partner.

Appeal from a judgment in favor of the plaintiffs, entered upon the trial of this action by the court without a jury.

On 16th July, 1870, the plaintiffs, as executors, commenced an action in this court against William Ohristal and Joseph Struthers to recover the sum of $6,798.52, with interest from 1st January, 1870, being the amount of a promissory note made and delivered to the executors by the firm of Ohristal & Struthers, of which William Ohristal and Joseph Struthers were members. On 18th July, 1870, a warrant of attachment was issued in that action against the property of William Ohristal as a non-resident. On 20th July, 1870, the defendants herein gave their undertaking in discharge of the attachment, which undertaking was approved by a justice of this court on 21st July, 1870, and the attachment was thei’eupon discharged. The defendants in the action answered and set up the non-joinder therein of Charles E. Ohristal, who they alleged was a member of the firm of Ohristal. & Struthers. Thereafter, and on 12th August, 1870, a stipulation in writing was entered into between the attorneys in that action, that the summons, complaint, and all papers, pleadings and proceedings therein might be amended by adding Charles E. Ohristal as a defendant therein, and that the plaintiffs might, within ten days thereafter, serve an amended complaint. On 20th August, 1870, the plaintiffs, without procuring any order of the court therefor’ served upon the attorneys

p. 156

for the defendants, 'William Christal and Joseph Struthers, an amended summons and complaint in which Charles E. Christal was added as a defendant. The three defendants answered the amended complaint. On 2d February, 1872, the attorneys for the defendants in that action gave a written notice to the plaintiffs’ attorneys of the withdrawal of the answer, and on 3d February, 1872, judgment was entered against the defendants therein as by default for $7,918.63. An execution was issued on this judgment against the property of the defendants on 3d February, 1872, and was returned wholly unsatisfied on 21st February, 1872.

Benjamin M. Stilwell, for the appellant.

Edward S. Clinch, for the respondents.

A surety upon an undertaking given to release an attachment cannot, after judgment, object to an amendment to the complaint made by consent and without the order of the court adding a defendant. It may w'ell be questioned whether in point of fact the additional defendant made any change in the condition* of the parties. The action was against the members composing a firm, upon a note made by the firm as such and under the firm name, and the omitted defendant was one of the members of the firm.

The omission to obtain the order permitting the amendment is cured by the statute. (2 R. S., 425.)

The objection that by the addition of this defendant without the consent of the sureties the sureties were discharged, is equally without weight. The action was commenced by attachment. The original complaint stated only two persons as being members of the firm sued.

The undertaking in question was given by the two defendants, or at their instance, to release the property levied on. The undertaking took the place of the property. The appellant agreed to pay whatever judgment was recovered against the defendants. Judgment has passed against these two defendants as partners, and also against an additional defendant who was one of the firm and was added for that reason. If the property had still remained subject to the levy, it could not be claimed that it was released because of

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this addition. There was no new action. It was the same action and upon the same cause of action, and if there had been no objection made by the defendants who were sued, no amendment would have been needed. That the sureties cannot question the regularity or merits of the judgment as settled. (Scofield v. Churchill, 72 N. Y., 565 .). That an undertaking given to pay a judgment, to be recovered in an action, binds the sureties to a judgment against any and all the parties. (Gilmore v. Crowell, 67 Barb., 64 ; Cockroft v. Claflin, 64 id., 464.) The undertaking itself, reciting the fact of the issuing of the attachment, estopped the defendants from questioning the fact of its issue. The objection therefore to the admission of the copy of the attachment on file was harmless. The same can be said as to the admission of the judgment roll. It included the original summons and complaint, and also the amended summons and complaint. If the roll should only have contained the amended pleadings, the annexation of the unamended did not injure the sureties as evidence in this action.

The judgment should therefore be affirmed, with costs.

Gilbert and Dykhan, JJ., concurred.

Judgment and order denying new trial affirmed, with Costs.