Hyperlawhypertext legal database Koenig v. Steckel 36 N.Y. Super. Ct. 167

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Koenig v. Steckel

36 N.Y. Super. Ct. 167 4 Jones & S. 167 Court N.Y. Super. Ct. Decision date 1873-05-31 English

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p. 167
WILLIAM KOENIG, Plaintiff and Appellant, v. ADAM STECKEL et al., Defendants and Respondents.
Before Barbour, Ch. J., Fbeedman and Sedgwick, JJ.
Decided May 31, 1873.

Headnote

I. Sureties on undertaxing to remove Cause prom Marine Court to Common Pleas.
1. When their liability is suspended.
a. It is suspended when the body of the defendant is taken under execution issued on the judgment rendered in the Common Pleas, and remains suspended as long as the defendant remains in custody thereunder.
Appeal from judgment.
p. 168
STATEMENT OF FACTS.
This action is brought upon a joint and several undertaking executed by the defendants and one Sebastian Banzer (against these two defendants only), upon the removal to the Common Pleas of an action from the Fourth District Court, in which this plaintiff was plaintiff, and said Banzer was defendant, conditioned in consideration of said removal and the sum of one dollar for the payment of any judgment which the plaintiff might recover in said Court of Common Pleas.
The said plaintiff recovered judgment in said Common Pleas, for the sum of $419.12, against said Banzer, and an execution having been returned unsatisfied against his property, an execution against his body was issued, upon which he was taken in April, 1869.
The defendants claim that the arrest of Banzer was a satisfaction of the judgment..
, The case comes here on appeal by plaintiff from a judgment in favor of the defendants.
George Carpenter, attorney, and of counsel for appellant, urged:
I. The plea of imprisonment is a defence strictly personal to the principal debtor (Chapman v. Hatt, 11 Wend. 41 ; Sunderland v. Loder, 5 Wend. 58 ; Cooper v. Bigelow, 1 Cowen, 56; Wakeman v. Lyon and Evans, 9 Wend. 241 ).
The cases in which the plea has been held to be good have been cases where,
(1.) The property of the defendant in custody was sought to be tabeen, or some “ulterior” proceedings taken against a defendant upon the judgment upon which he was then held in custody.
(2.) Or when a joint action was sought to be maintained against the defendant on the judgment, and his
p. 169
sureties upon some "bond, notes, or other security, given as collateral security to the judgment, and after it was recovered, and where the plaintiff, instead of looking to the collaterals, enforced the judgment, and took the defendant, and then still sought in a joint action against him and his sureties (and while he was in custody) to recover from them.
II. The undertaking in suit "being a joint and several obligation, "the plaintiff had the right to sue all, or any, or as many of the obligors as hé chose (see Code, § 120; Brainard v. Jones, 11 How. 569 ; affirmed, 38 Barbour, 616).
Samuel Hirsch, attorney, and of counsel for respondent.

This case runs upon all fours in principle with Sunderland v. Loder ( 5 Wend. 58 ), where the obligors in a bond given for the payment of a judgment were sued thereupon, after the body of the judgment debtor had been taken in execution, and while he was still imprisoned. The court held that the taking of the body of the debtor in execution was a satisfaction of the debt for the payment of which the bond was given, so long as the imprisonment continued, and therefore that the action against the sureties of the debtor upon a collateral obligation could not be maintained (see also Wakeman v. Lyon, 9 Wend. 241 ).

The judgment should be affirmed, with costs.

Freedman and Sedgwick, JJ., concurred.

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