Bates v. Merrick

Headnote

Pleading—complaint in action on undertaking — what allegations sufficient — irregular judgment—joint liability—principal and surety — Estoppel.

A complaint alleged that by reason of the false representations of defendant, plaintiffs were induced to sign an undertaking on an appeal by defendant, from the judgment of the Supreme Court of the State of New York, which appeal was to the Court of Appeals, and referred to the undertaking, which mentioned a judgment recovered in the Supreme Court, general term. Held, a sufficient averment that the j udgment was recovered in a court in the State of New York.

The complaint alleged that the undertaking was duly filed and accepted, and was used as a sufficient undertaking on said appeal, and stayed all proceedings on the judgment appealed from, and that said judgment appealed from was affirmed in all things. Held, that this was sufficient to show that the appeal was perfected, and every thing that the law required done. The facts showing an affirmance of the judgment were not required; it was sufficient to allege that it was affirmed. Held, also, that the undertaking being accepted, and operating to stay proceedings, defendant was estopped from questioning its validity.

It was alleged that upon a remittitur from the Court of Appeals, a judgment was entered in the Onondaga clerk’s office against the defendant; that thereupon plaintiffs, upon the undertaking, became jointly liable with defendant to pay said judgment; that plaintiffs were compelled by the undertaking to, and did pay a sum named and that the payment was made jointly. Held, that (1) the objection that the judgment was not regularly entered could not be raised by demurrer in this action, and that (2) the complaint stated facts sufficient to charge defendant with a liability to plaintiffs jointly.

Appeal by defendants from an order at the special term, overruling a demurrer to the complaint.

The action was brought in Cortland county by Joseph T. Bates and Jacob Krebbs against Charles A. Merrick, to recover for an alleged fraud perpetrated by defendant upon the plaintiffs, by inducing them to become sureties upon an undertaking upon an appeal to the Court of Appeals. The defendant interposed a demurrer to the complaint.