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and 114 New York State Reporter tion v. Read, 124 N. Y. 189, 26 N. E. 347, an undertaking to stay proceedings in a foreclosure case, instead of providing for the payment of deficiency under section 1331 of the Code of Civil Procedure, was in the form prescribed by section 1327, to stay execution on a money judgment, and provided that, if the judgment appealed from should be affirmed, or the appeal be dismissed, defendant would pay the sum directed to be paid by the judgment, etc. It was held that the judgment appealed from did not direct any money to be paid (Barnard v. Onderdonk, 98 N. Y. 167), and therefore no recovery could be had upon the undertaking beyond the costs inserted in the judgment appealed from, even though there was finally a deficiency upon the mortgage which the defendant was liable to pay.
These cases are not entirely in point here, but they illustrate the principle that the sureties upon an undertaking are not liable beyond the language of their agreement, fairly construed. They are not bound by any intention that may have existed, unless it is expressed in the undertaking itself. The liability in this undertaking is made to rest upon the precedent event that the defendant made default in obeying a direction of the court; and the fact that no such direction could be given, and there could, therefore, be no default, did not operate to render the surety liable in the absence of such precedent event, the default occurring
We conclude, therefore, that the judgment and order appealed from were improperly rendered and made, and that they should be reversed, and a new trial granted, with costs to the appellant to abide event. All concur, except McLENNAN, J., who dissents in an opinion.
Judgment and order reversed, and new trial ordered, with costs to the appellant to abide event, upon questions of law only, the facts having been examined, and no error found therein.
MCLENNAN, J. (dissenting). It seems to me that the words contained in the undertaking in suit, which were evidently taken from subdivision 1 of section 575 of the Code of Civil Procedure, added in no degree to the statutory obligation of the defendant, and so may be disregarded as surplusage. The obligation of the defendant is clearly expressed in the last clause of the bond, to wit, that Shipman "will at all times render himself amenable to any mandate which may be issued to enforce a final judgment against him in the action.” It added nothing to that obligation to say that Shipman "will obey the direction of the court or of an appellate court contained in an order or judgment requiring him to perform the acts specified in said order of arrest." The final judgment might be the judgment of the appellate division or of the court of appeals, but the only obligation of the defendant is that Shipman will render himself amenable to any mandate which may be issued to enforce such final judgment. It adds nothing to say such judgment as may be rendered in the appellate court. It is then only, and can only be, the final judgment in an action at law. The decision in the case of Haberstro v. Bradford, 118 N. Y. 187, 23 N. E. 459, is decisive of the question. In that case one Warren was arrested for the appropriation to his own use of moneys received by him in a fiduciary capacity, and the order of arrest directed the sheriff to arrest him, and hold him to bail in the sum of $1,200. The undertaking was as follows:
"We do undertake and agree, jointly and severally, that the said defendant, William F. Warren, 'shall at all times render himself amenable to the process of this court during the pendency of the above-entitled action, and to such as may be issued to enforce the judgment herein.'”
It was held that the undertaking was good. The court said (page 194, 118 N. Y., and page 460, 23 N. E.):
"The condition embraced in the undertaking in excess of the statutory re quirement is, therefore, that the defendant shall render himself amenable to the process of the court during the pendency of the action.”
And at page 196, 118 N. Y., and page 461, 23 N. E., the court said: "We think it (the clause Warren 'shall render himself amenable to the process of the court during the pendency of the above-entitled action'] cannot be held to add any additional burden or duty in an action for the recovery of money only, for that no mesne process can issue requiring the defendant to do any act during the pendency of the action. Therefore it may be treated as surplusage, and the legal quality of the instrument is not vitiated."
In the case at bar the additional condition in the undertaking in no way increased the burden of the sureties, for the reason that there could be no direction “of the court or of an appellate court contained in an order or judgment requiring him to perform the acts specified in said order of arrest” until the final judgment was entered, and except such as was contained in such final judgment. In giving the undertaking in question, the sureties assumed the statutory obligation imposed by such act, and which was correctly expressed in the last clause of the instrument. The preceding clause added nothing to such obligation, because, as was held in the Haberstro Case, supra, no order or direction by any court could be made which would legaliy affect the obligation of the sureties until final judgment was rendered, and then only such as could be properly rendered in a judgment at law for money only. The action against Shipman was purely an action at law. No form of equitable relief could be decreed. No liability could be established against Shipman except by the final judgment, and the only obligation which the defendant assumed was that he would render himself amenable to any mandate which might be issued to enforce such judgment. When the Haberstro Case, supra, was before the general term, the court said:
"It is not apparent, nor am I able to see, that the use of these unauthorized words of the undertaking can have any possible import in an action at law, other than such as would be furnished by their exclusion from the instrument. No requirement within the provision of the undertaking, other than that arising out of the liability established by the judgment, seems to have been possible in the action in which it was taken.”
In the case of Saunders v. Hughes, 2 Bailey, 504, the bond, in addition to the statutory requirement, contained a provision requiring the defendant “to abide the event of the court and jury.”
It was held that the addition of such words did not render the bond invalid.
In the case of Goodwin v. Bunzl, 102 N. Y. 224, 6 N. E. 399, an and 114 New York State Reporter undertaking given on appeal from a judgment in replevin to the general term, instead of being in the form of an undertaking to stay proceedings on appeal in such an action (Code Civ. Proc. § 1329), was in tine form prescribed to stay (section 1327) execution on a money judgment. It was properly served, acknowledged, approved, filed, and a copy served on plaintiffs' attorneys. In an action upon the undertaking it was held that it could be enforced.
We think the cases cited are controlling upon the questions involved upon this appeal, and support the proposition that the defendants are liable upon the undertaking executed by them. Upon the merits, iinless there is some controlling authority which prevents, the defendant should be held liable. The purpose of his act in signing the bond in question was to release Shipinan from the order of arrest and give him his liberty. The execution of the bond in suit accomplished that purpose, and it was prepared and executed for that purpose. Shipman then left the jurisdiction of the court, and the defendant ought not to be permitted to say, “All I did in the premises was a farce, and I incurred and intended to incur no liability thereby:" Carr & Hobson v. Sterling, 114 N. Y. 558, 22 N. E. 37.
The judgment should be affirmed, with costs.
(79 App. Div. 475.)
HOLIHAN V. HOLIHAN. (Supreme Court, Appellate Division, Fourth Department. January 20, 1903.) 1 HUSBAND AND WIFE-SEPARATION AGREEMENT SETTING ASIDE CONVEYANCES
A husband and wife agreed to live separate during their natural lives. The husband, pursuant to the agreement, conveyed to the wife certain property, and the wife relinquished her claims upon him for support, and released her dower right and the right to share in his estate, together with her interest in a policy on his life. The wife took possession of the property conveyed to her, made improvements, and paid the taxes and insurance. She received from some sources $500, and out of this paid $150 on a mortgage, and used the balance for other purposes. Her health was poor, necessitating medical expenses, and she spent $350 more than her income from the property the first year. But there was no evidence that she did not do the best she could, nor was there any evidence that she had no other sources of income. Held, that the husband's demand that the conveyance to the wife be set aside unless she gave a bond,
with sureties, to protect him against her future support, was inequitable. Appeal from special term, Cayuga county.
Suit by John J. Holilan against Mary Holihan. From a judgment for plaintiff, defendant appeals. Reversed.
Argued before McLENNAN, SPRING, WILLIAMS, HISCOCK, and NASH, JJ.
Lyon & Lyon, for appellant.
WILLIAMS, J. The judgment should be reversed, and a new trial granted, with costs to the appellant to abide event.
The action was brought to set aside two deeds given by a husband to his wife upon an agreement made after a separation had taken place, unless the wife gave a bond, with sureties, or a mortgage upon the property conveyed, to protect the husband against her future support and maintenance. The agreement and deeds were given at the same time,-February 20, 1899. The parties resided in the city of Auburn, N. Y., and the husband was engaged in business there. They had been married for many years. They had no children of their own, but had an adopted daughter. In 1898 they quarreled and had per sonal encounters with each other. There was some talk about another woman, and the husband's relations with her. He was at a Keeley Cure in Rochester for a time, and estrangement and separation resulted. The husband left his wife January 3, 1899. It seemed impossible for them to resume their marital relations. Lawyers were employed on either side, and the agreement and deeds were made. There is no evidence in the record as to what property the parties had, other than that referred to in the agreement and deeds, or what the income of either party was. The agreement recited that differences between the parties had arisen, resulting in estrangement and separation; that they had been and were living separate; that there was no probability of reconciliation, and their common interests would be promoted by an agreement to live separate in the future; and then they mutually agreed to live separate during their natural lives. The husband agreed to convey by warranty deeds to his wife, in fee simple, the premises 104 and 106 Van Auden street, Auburn, N. Y., on which there were tenement houses, the deeds to be given concurrently with the agreement; and it was stated that this property was a reasonable and proper provision out of the husband's property for the support and maintenance of the wife and adopted daughter. The husband agreed that he would permit his wife and adopted daughter to live separate from him wherever they liked, and to carry on such trade or business as they desired, and he would not molest them; that his wife might have the exclusive control, custody, and education of the adopted daughter, and he would not interfere with that; that she might retain all property she then had or should thereafter acquire, and enjoy and dispose of the same as though she were unmarried; that he would not take or receive any share or interest in her estate upon her decease, but the same should go to her heirs or next of kin by blood. The wife agreed to take the deeds of the Van Auden street property, with a house and lot on Pine street (No. 8), and a house and lot on Park avenue (No. 15), to which she already had title, in full satisfaction for the support and maintenance during their lives of herself and the adopted daughter, and of all indebtedness incurred by them, and then unpaid, and for all claim for alimony; and she agreed to release the husband from all claim for past and future support and maintenance and dower, and that she would not take or receive any share or interest in his estate upon his decease, and she released and conveyed to him all dower and interest in his property. She also agreed to pay all debts which she had contracted, and which were unpaid, for the support of herself and adopted daughter, and to release her claim to a $3,000 policy of insurance upon his life, and to all money provided therein to be paid to her, and that she would not sue or take any proceedings against him for any act of his past life or for future supand 114 New York State Reporter port or maintenance. The deeds were of the Van Auden street property, referred to in the agreement. The wife at the same time released her interest in the life insurance,-$3,000. She had paid some of the premiums thereon prior to that time. The wife took possession of, and had the income from, the real estate so conveyed to her, together with the property on Park avenue and Pine street, from the 20th of February, 1899, on. The adopted daughter left her, and her relation to the parties became thereupon unimportant. The wife made improvements upon the property to the amount of $50, paid taxes and insurance thereon, and made a payment of $150 upon the principal of a mortgage upon her real property, besides keeping up the interest. She received from some source $500 of life insurance, and out of this paid the $150 of principal on her mortgage, and used the balance for other purposes. She was in poor health, her doctor bills were heavy, and this money was used up during her sickness, and for school and other expenses of the adopted daughter. While she was sick, one bill contracted before the agreement was made was sued; she and her husband being made defendants. She had some doubt as to whether, under the agreement, she was liable to pay it. When satisfied upon that question, she paid the bill, and the action was discontinued. The Van Auden street property was in poor repair, and did not produce very good income. The deeds from the husband recited consideration of $800 and $1,300, but the wife was unable to sell the property for $1,800. This action was brought August 1, 1901,-one year and six months after the agreement and deeds were given. It was tried in October, 1901, but the judgment was not entered until July, 1902.
The relief afforded by the judgment was improperly granted. The agreement and deeds were supported by a good consideration. The wife agreed to protect the husband from her future support and maintenance, and that of the adopted daughter, not to prosecute him for any act of his past life, and to release her interest as beneficiary under a $3,000 policy of insurance upon his life, and all dower and other interest in his property. She gave the release of the life insurance and dower at once, and has kept and performed her part of the agreement ever since. She has supported and maintained herself and the adopted daughter, so far, at least, as to fully protect her husband against such support and maintenance, and she has not prosecuted him for any act of his past life. She has not been in good health. Her expenses have therefore been considerable, and the income from the property has not been large. It does not appear that she has been improvident, or has expended more money than she reasonably needed to. It may be that the husband, by the agreement and deeds of the property, did not make an adequate provision for the support of his wife and the adopted daughter in case of the sickness of the wife, but that would not be a sufficient reason for granting him relief. In the absence of any proof that the wife has not done the best she could under the circumstances,-in the absence of any proof that the wife has not fully performed the agreement on her part,—and the provision made by the husband for his wife appearing to be inadequate, under the circumstances, the court has by the judgment imposed greater burdens upon the wife than the agreement provided for, and has denied her any cor