Ross v. Ross

Headnote

Construction of the condition of a bond — a frivolous answer may be stricken out, before the expiration of the time to amend.

Appeal from a judgment in favor of the plaintiff, entered upon an order overruling the defendants’ answer as frivolous.

This action was brought to recover the sum of $550 and interest, the penalty of a bond executed by the defendants. The condition

of the bond provided that Joseph Ross, Jr., should pay to the plaintiff all costs and disbursements of the plaintiff to the 30th day of September, 1879, in a certain action then pending between the plaintiff and the said Joseph Ross, Jr., “ in sixty days after the same shall be ordered, paid by the said court.” The complaint alleged that on the 7th day of February, 1881, the court made an order that said Joseph Ross, Jr., pay to the plaintiff the sum of $778.15, his costs and disbursements in said action to September 30, 1879, “within sixty days after entering and service thereof on him.” That said order was duly entered and served on said Joseph Ross, Jr., on the 7th day of February, 1881, and that the time within which said costs and disbursements were to be paid has expired. This action was commenced on the 14th day of April, 1881, and an answer was interposed by the defendants, in which they allege, among other things, that pursuant to the aforesaid order the defendant Joseph Ross, Jr., had until April 7, 1881 (the sixty days after the entry and service of the order on him), within which to pay said sum of $778.15 mentioned therein, and that the penalty of said bond was not due until after sixty days from the said 7th day of April, 1881, and that said defendants were not yet liable on said bond.

The court at General Term said: “ The condition of the bond upon which this action is founded, to pay the amount secured “ in sixty days after the same shall be ordered paid by the said court,” was performed when sixty days had expired from the entry of the order requiring the payment in sixty days from the date of the entry of the order and the service of a copy upon the obligors. It is not a reasonable construction of the words to hold that the sixty days only begun to run after the expiration of the sixty days during which the payment was ordered to be paid. When the costs were payable under the order they were enforceable under the bond. A frivolous answer may be stricken out as such before the time for amending the same has expired. It is therefore not an available ground for the reversal of the order in question that the defendants had an unexpired time in which they might have amended their answer. They did not ask to amend upon the argument of the motion to strike out their answer as frivolous, nor have they applied since.”