Dickerson v. Cook — 10 N.Y. Super. Ct. 324

Majority

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T. Stokes Dickerson v. John Cook, John W. Cook & Alexander Cook.

Headnote

Where, in an action to enjoin the collection of a judgment, a bond is given in the sum of $1,130'82, being the principal of the judgment only, conditioned to “pay the said sum of $1,130"82, the amount of said judgment, whenever ordered by the said Superior Court,” in an action on such bond, the sureties cannot be made liable to pay more than the sum named in the penal part of the bond, viz. $1,130'82. An order made at a special term of the court, that the judgment be paid, will enable the obligee to maintain an action on the bond, so far as his right to recover depends upon the question, whether the court has ordered the judgment to be paid.

It is enough, that the court has made an order, in the action in which the bond was given, on a notice, only to the defendant therein, that the judgment be -paid. It is not indispensable to a right of action, on such a bond, that the sureties in the bond had notice of such motion.

When a complaint contains two separate and distinct causes of action, and on the trial, the complaint is dismissed as to one of them, and as to the other a verdict is rendered for the plaintiff, subject to the opinion of the Court, at General Term, upon the questions of law arising in the case, on a case to be made by the plaintiff—if the plaintiff wishes to review the decision of the Court,-as to

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the dismissal of the complaint, as to one of the causes of action, on the same case, he should either obtain such permission from the Court to be evidenced by its order, or, on serving the case made, accompany it with some notice that is made, as well for that purpose as to enable the court to decide the questions of law subject to which the verdict was taken, upon the other cause of action. Unless this is done, so as to enable a defendant to prepare amendments, so as properly to present all the matters that would greatly influence the decision of both subjects, the plaintiff on moving for judgment on the verdict will not be heard, as to the dismissal of the complaint as to the first cause of action. If he wishes to move for a new trial, on the. ground of such dismissal, he should apprise his adversary that his ease is made for that purpose, and also by the terms of his notice of the hearing sought to be had on the case made.

(Before Oaklet, 0. J., Campbell and Boswokth, J.J.)

May 3;

May 20, 1854.

A verdict was rendered in this action for the plaintiff, subject to the opinion of the court at General Term, on the questions of law presented by the case. The action is on an undertaking, also on a bond, executed by the defendants. The former was given to obtain an injunction, and the latter, after the injunction had been dissolved, to have it restored and continued. The facts are briefly these : Dickerson had a judgment against John Cook, in the Supreme Court, for $1130 x8/0, entered April 30, 1849, under § 382 of the Code; John Cook brought an action in this court, to restrain Dickerson from collecting the judgment, and from proceeding further under an execution issued upon it, and an injunction was issued on or about the 6th of April, 1849, upon an undertaking executed by J. Cook, and the other defendants, as his sureties, whereby they agreed to pay to the plaintiff such damages, not exceeding $500, as he might sustain by reason of the injunction, if the court should finally decide, that John Cook was not entitled thereto. This injunction was dissolved by an order of the court, made October 20, 1849, with $10 costs of the motion, on the ground, that a bond, under 2 R. S. p. 189, § 147, was indispensable. The General Term of the court, on appeal, affirmed that order with $10 costs, February 9, 1850. But the General Term further ordered, that the injunction might be restored and continued on John Cook’s giving within ten days, a bond with two sureties in the amount of the judgment. A bond was executed accordingly by all the defendants, in the penal sum of

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$1,130.82, conditioned that if tfie said obligees, their executors, or administrators, or any of them, shall well and truly pay, or cause to be paid, to the said Dickerson, his executors, administrators or assigns, the said sum of $1,130.82, the amount of said judgment, whenever ordered by said Supreme Court, then the obligation to be void,.otherwise to be and remain in full force and virtue.”

Issues were joined in that action. It was referred to a referee, to hear and decide the whole case, who made a report October 15, 1851, which stated the facts established by the evidence, and the referee’s conclusions of law thereon, which, among others, was, that John Cook was not entitled to relief, and that his complaint should be dismissed with costs. The report found, among other facts, that prior to, and at the time of confessing the judgment of April 30,1849, John Cook was indebted to the plaintiff, upon a bond and mortgage, notes and checks ; that the mortgage had been so far foreclosed,'that the plaintiff had obtained judgment in an action to foreclose the same, and thereupon, an accounting was had, and a balance fixed of $1,130 xVo, for which amount John Cook confessed the judgment of April 30, 1849, upon an agreement between him and the plaintiff, that the latter should surrender and give up to the former such notes, cheeks, and bond and mortgage, and cancel the judgment in the foreclosure suit, and give time for the payment of the judgment. That such notes, checks, and bond and mortgage had not been surrendered, nor the judgment in the foreclosure suit cancelled. Judgment having been entered on the report of the referee, Cook appealed from it to the General Term. On the appeal, that judgment was reversed, and a judgment was given, that the plaintiff surrender the notes, checks, and bond and mortgage, acknowledge satisfaction of the mortgage, and of the judgment recovered on the foreclosure suit. But the court did also further adjudge the judgment of the 30th of April, 1849, for $1,130 Ts/0, “ to be a good and valid judgment, .and directed the same to stánd as good and effectual between the parties.”

On the 11th of October, 1852, the Superior Court, at Special Term, on a previous notice to John Cook, ordered, that he pay the judgment of $1,130 Ts/o and interest, in ten days, or that in

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default thereof, the plaintiff might move for liberty to sue the sureties on their bond and undertaking.

On the 30tli of Hovember, 1852, an order of the Special Term was made, that the clerk of the court deliver the bond and undertaking to the plaintiff, to be prosecuted by him. On the motion, on which the last order was made, counsel for all these defendants were heard.

In December, 1852, this action was commenced.

On the trial the judge presiding, dismissed the complaint as to the first cause of action (which was upon the undertaking) on the ground that the orders and judgment, given in evidence, had not finally determined that John Cook was not entitled to the injunction issued on the security of the undertaking. He also decided that the plaintiff could not recover, on the bond, anything in addition to the sum of $1,130 T\\, not even interest, subsequent to the commencement of this action.

The defendants offered to prove that the notes, checks, and bond and mortgage, which it had been adjudged that Dickerson should surrender to John Cook, had not been given up; that the mortgage had not been cancelled, nor satisfaction of the judgment in the foreclosure suit acknowledged. Ho such defence was set up in the answer of either defendant. A motion was made by defendants to dismiss the complaint, as to the second cause of action (which was upon the bond), on various grounds. The motion was denied, and the decision excepted to. On the application, at the General Term, for judgment on the verdict, the plaintiff insisted on the right to review the decision of the judge, dismissing the complaint, as to the first cause of action set forth in it (which was on the undertaking), notwithstanding no such right had been reserved at the trial, nor any case or bill of exceptions had been made and served by the plaintiff to be the basis of such a motion. The only case made was one to present the questions of law arising at the trial, subject to the decision of which, by the court at General Term, a verdict had been ordered, and rendered, in favor of the plaintiff.

H. Brewster, for plaintiff, made the following points.

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As to the first cause of action, the plaintiff says—

I. The right of action, on the first cause of action, depends on the question, whether the Superior Court finally decided that the plaintiff, John Cook, was not equitably entitled to the injunction. 1. The very terms of the injunction show that, if it is not continued, or the judgment set aside in the final decision,, such decision is adverse to the plaintiff’s right to the injunction. John Cook was plaintiff, and was asking judgment against the defendant to vacate and set aside the judgment entered by confession. 2. The court decided, Oct. 20, 1849, that he was not equitably entitled to his injunction, which was affirmed at General Term, February, 1850. (Duncan v. Lawrence, 1 Barb. S. C. R. 447.) 3. By the final judgment of this court, first on the report, and secondly on the appeal, there can be no doubt that the dismissal of complaint, with costs, was a decision against the equity of the injunction. (1 Barb. Ch. Ju. 614 & 645 ; Old v. Old, Seaton on Decrees, 300.) 4. That decision is left standing, except so far as the judgment on appeal conflicts. The judgment of May, 1852, not upholding the injunction and declaring the judgment valid, the injunction fell, and with no saving clause or reservation, necessarily this established that John Cook was not equitably entitled thereto. It is a rule of law or equity, and is also common sense, that the injunction must be retained in the final decree if it is to be retained after judgment. (Seaton on Decrees, 44, note 5.) 5. If the judgment is good and valid, if not impeachable for fraud, and not to be interfered with, of course the injunction was inequitable. The party, if he feared his paper would be negotiated (which is not alleged), should have enjoined the defendant from negotiating the paper. The result shows no ground for that injunction, and, therefore, the condition was not complied with. This was the point on which the judge ruled, and the exception is well taken.

TT The other objections were not well taken. The undertaking made no provision for a reference, and, therefore, no reference could be had. (Gracie v. Sheldon, 3 Barb. S. C. 232 ; Higgins v. Allen, 6 Prac. Rep. 30.) If otherwise, the court were not restricted to that course, and they have ordered

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this suit for the purpose of ascertaining the damages. (Code, § 222.) The second point of defendants was equally baseless, as the Eevised Statutes provide for two kinds of security, and they were to be both used in such a case as this. By section 141,. 2 E. S. 189, the party asking injunction, after judgment, was required to deposit the money or give a bond, and 2. Also execute a bond to pay all damages and costs, &c. By section 146, now § 152, 2 E. S. 190, a bond with sureties may be substituted, and then the penalty and condition may be enlarged to cover both security for damages, and to take the place of a deposit of the amount of the judgment. The first part of section 14 L is modified by the Code. And the condition here very properly conforms to the Code. But the bond provided for by the rule of this court, was to stand with the undertaking, and, therefore, its provisions only cover subdivision 1 of section 141. Had it been intended to supersede the undertaking, then it would have had to go further, and provide for damages, &c. Consequently, the case was made out sufficiently to authorize proof of damages, and the exception is well taken.

HI. The second cause of action, on the bond, was sufficiently proved. The condition was to pay the judgment of $1,130.82 whenever ordered by the Superior Court. A bond is of binding effect unless avoided by a compliance with the condition. The objections to it, are none of them well taken. 1. They say John Cook only was ordered to pay, and that is not within the condition. To this we say, that John Cook, only, was a party, and the only one over whom the court had jurisdiction, and, therefore, the meaning of the condition obviously is, that whenever payment is ordered by the Superior Court in any form. Again, the condition is, that if the above bounden parties, or any of them, shall, and will, well and truly, pay whenever ordered; that is, whenever any of them are ordered to pay, if they pay, the bond is void. An order that any one of them pay, is, therefore, not performed or complied with, unless payment is made. 2. The condition was to pay $1,130.82, and, as the order required payment of interest, it is said not to be according to the condition. If the greater did not include the less, there would be some force in this objection.

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But as long as the order was for the whole, with interest, it certainly covered that amount. 3. Had a judge at Special Term authority to make such order ? The Special Term is as much the court as the General Term, and the bond says the Superior Court; General Term is not in the bond. («.) The order at Special Term cannot be impeached collaterally, and is good until reversed; but we say it is good. The Court of Chancery and Supreme Court, in Equity, often made orders after, and consequent on, the final decree. Here the judgment did not put an end to the action of the court. (~b.) The argument on the other side, would deprive the court, at Special Term, of the power of making order for re-taxing costs, for writs of assistance to set aside executions and make allowances of costs, and the multitude of motions after judgment in all cases where judgment was rendered at General Term. The General Term acts chiefly in an appellate capacity; but does not, thereby, abridge the other powers of the Special Term. 4. The defendants objected that sufficient notice was not given to the defendants John W. Cook and Alexander Cook. To this we say, they were not entitled to notice: “It is not in the bond.” But notice was given, as proved by Armstrong. This was raised as a question of law purely. The jury have passed on the fact of notice. The sureties appeared on the motion for leave to sue the bond. 5. It was objected that there was a levy on the goods of John Cook, upon an execution issued on such judgment of the plaintiff.

The answers are—

(a.) That there was no proof of a levy, and, when this objection was made, no offer to prove the fact. (b.) A levy, only, is no bar to this proceeding, for the bond is to pay if ordered, and nothing but payment is a bar. A mere levy, unless the defendant is deprived of his property, is nothing; and would only bar the plaintiff if he obtained payment thereby. (Waddell v. Elmendorf, 5 Denio, 447 ; Peck v. Tiffany, 2 Coms. 456.) These are all the objections that appear to require a notice in these points.

IV. If the judge erred in admitting or excluding evidence, that can only be corrected on a new trial, unless as to a mere formal matter, like interest. We ask interest, because it is a

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single bill, and the penalty and condition are for the same amount, but if that cannot be allowed, as being beyond the contract, at least they should pay interest during the period they unjustly litigate. That should be added.

V. Rone of the exceptions of the defendants are well taken. There was no offer to prove that Cook was deprived of any goods under the levy, or that the plaintiff obtained any satisfaction thereby, but that the levy was abandoned. (Dyke v. Mercer, 2 Shower, 394.) Eor did they offer to show the proceedings against Westervelt either benefited the plaintiff, or injured the defendants. Besides, all these questions were disposed of when the order to pay the money was made in this court. A party may pursue all remedies till he gets 'one satisfaction. (Ontario Bank v. Hallett, 8 Cowen, 192.)

VI. John Cook was an incompetent witness, and, therefore, the offer to prove facts by him cannot avail the defendants.

VTL The objection that the judgment of April 30th, 1849, was not satisfied, is not well taken. If it were satisfied, that would be a perfect defence. The condition of the bond is not to pay the judgment, if satisfied, but when ordered to do so. The statute makes this bond necessary, not as the condition of satisfying the judgment, but as the condition of staying the proceedings by injunction.

VHI. The part of the charge excepted to by the defendants, is but a repetition of the same principle considered under the third point.

G. W. Stevens, for defendants, J. W. and A. Cook, and S. Sanxay, for defendant, John Cook, made the following points.

I. The plaintiff’s damages under the first undertaking were never liquidated as against John Cook. Those damages cannot be liquidated in an action on the undertaking against both principal and sureties. The method of liquidating the damages is pointed out by the Code. (Code, § 222.)

II. The first undertaking was merged in the bond given by the' defendants, and set out in the complaint as the second

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cause of action. The sureties were discharged, as sureties, by becoming principals in the second bond. (2 R. S. 3d ed. 251; Cook v. Dickerson, 2 Sand. S. C. R. 691; Theobald’s Principal and Surety, 3; Sprigg v. Bank of Mount Pleasant, 10 Peters, 257; Willis v. Ives, 1 Smedes & M. 307.)

HI. The Court did not finally decide that John Cook was not entitled to the injunction.

IV. All the obligors to the second bond are principals, and by the condition they were all to be ordered to pay the sum. mentioned in the condition. No such order was made by the court. (Sprigg v. Bank of Mount Pleasant—above; Willis v. Ives—above.)

V. The order of the 11th October, 1853, was in enlargement of the condition of the bond, and consequently was not operative as against John W. and Alexander Cook.

VI. The court, at Special Term, had no jurisdiction to make the order of October 11th and November 13th, 1853.

Vil. John Cook was a competent witness for the other defendants. (Price v. The Mayor, &c. 4 Sand. S. C. R. 616.)

VIH. The plaintiff was not entitled to recover more than the amount of the penalty of the bond.

IX. The judgment docketed in the Supreme Court on the 30th of April, 1849, in favor of the plaintiff against John Cook, not having been satisfied of record, and the injunction restraining the plaintiff from proceeding on that judgment not having been continued by the final judgment of this court in the suit instituted by John Cook against the plaintiff, the plaintiff cannot recover upon the bond given by the defendants upon the reviving and continuing of that injunction, and which constitutes the second cause of action in this suit.

The fair meaning of the condition of the bond of February-22, 1850, is that the defendants would pay the judgment, of $1,130.82, whenever the Superior Court directed that judgment to be paid. The bond does not contemplate, nor was it necessary, that the sureties of John Cook should have had previous notice of the motion, or proceedings, on which such order or direction might be made. It

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was enough, that the Oourt should order in that action that John Cook pay it.

The order of October 11, 1852, does not modify or vary the judgment of the general term; that the judgment of $1,130.82 is “ a good and valid judgment,” and that it “ stand as good and effectual between the parties.” It was made by the Superior Court; and though made at a special term, it is as much an order of the Superior Court as if made at a general term. It is not a void order, and its propriety cannot be questioned collaterally.

The judgment of the general term, denying so much of the relief prayed for by the complaint, as consisted of a claim that the judgment for $1,130.82 be vacated, and instead thereof, adjudging it to be a good and valid judgment, and that it should stand as good and effectual between the parties, was, in legal effect, a direction that it should be paid, if it had not been satisfied subsequent to its recovery.

The complaint, in the action of Cook against Dickerson, alleged that the latter had issued an execution on the judgment of $1,130.82, which had been levied on the property of John Cook, and that the Sheriff threatened to sell the same. That allegation was not denied by the answer to such complaint. For aught the court at general term knew, a sale of that property had been made, or might be made, and satisfaction of the judgment in part had been, or might be, produced by such levy, and proceedings consequent to it.

It was therefore proper, that Dickerson should subsequently apply to the court, on notice to John Cook, for an order directing him to pay the judgment, to the end that he might show cause, if any existed, why such an order should not be made. None being shown, to the satisfaction of the court, an order was made, that he pay the $1,130.82, and interest. The court at general term, having previously decided that the judgment was valid, and should stand as good and effectual between the parties, a subsequent order that Cook should pay it, was one which it was prudent, if not necessary, that the plaintiff should obtain, before commencing an action on the bond. Such an order having been made on notice to John Cook, we must hold it to have been rightfully and properly made, and sufficient to

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entitle the plaintiff to recover, so far as that right depends nakedly on the question, whether the court has made such an order, as is contemplated by the condition of the bond of the 22d of February, 1850.

It was strenuously insisted, on the argument, that the judge erred in excluding evidence that Dickerson had not delivered up to John Cook the bond and mortgage, note and checks, and executed the satisfactions, as ordered by the judgment of the general term, in the suit of Cook against Dickerson.

It is a sufficient answer to this objection, that no such defence is set up in the answer. Perhaps on this ground, the judge deemed the evidence irrelevant, as he also excluded evidence offered by the plaintiff, that they had been surrendered to Cook’s attorney before this action was brought, and also that satisfaction of the mortgage, and of the judgment in the foreclosure suit, had been delivered to the same attorney.

The judgment of the general term, in this respect, if it had not been complied with, would have been enforced by attachment. But as non-compliance is not averred in the answer, proof of it at the trial, as a defence, was inadmissible.

We think none of the exceptions taken by the defendants to the decisions of the judge, over-ruling the evidence offered by them, are tenable. The plaintiff is consequently entitled to judgment on the verdict.

But he insists, that he is entitled, on this motion, to review the decisions to which he excepted at the trial, and that if the court is of opinion that there was error in dismissing his complaint, as to the first cause of action, or in disallowing the interest claimed, a new trial should be granted. Ho right is reserved in the case, or contained in the order made at the trial, that he may so move on this ease. He is as much precluded from reviewing the adverse decisions of a judge as the defendant, unless he makes a bill of exceptions or a case for the purpose, and moves upon it for a new trial. Leave might, perhaps, have been given, in a matter coming up, as this does, to move on the case, to which the verdict was subject. When so given, the case would be prepared, and amendments understandingly proposed, with a view to adapt it to both motions, and to present all that bore on the merits of either. But on a

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case made as this is, merely for the purpose of enabling a plaintiff to obtain a judgment on his verdict, we do not think, he is entitled to move, as a matter of course, to set aside the verdict.

The injunction issued, on the security of the undertaking, was dissolved in about thirty-three days after it was granted. All the damages occasioned by the issuing of that injunction accrued within that time. That was an inj unction pendente lite. It was dissolved, not because the court thought the facts insufficient to entitle Cook to an injunction, but because the security made by the revised statutes, a condition to granting it, had not been given. The court ordered it to be revived and continued, on the execution of the bond. The bond, from the time the injunction was restored, was the security given to Dickerson, as a condition of granting it, and it is not clear that the parties to the undertaking, as such, are liable for the consequences of such revival and continuance.

The plaintiff’s right to recover upon the undertaking is not so clear as to justify us in attempting to interfere, on this case, with the decision made at the trial.

We think it very doubtful, in the most favorable view of the plaintiff’s rights, whether he can recover against the sureties in the bond, anything beyond the amount specified in the penal part of the bond. It is not in terms named a penal sum. But they acknowledge themselves indebted in the specific and precise sum of $1,130.82, and the condition is to pay this sum whenever it is directed to be paid.

On the whole case, we think judgment should be entered for the plaintiff on the verdict rendered.