ency of that action was brought to defendant's attention, by which he was requested to defend, to which notice, as shown, no heed was paid. It is settled law that a covenant against incumbrances runs with the land to the last grantee (Geiszler v. De Graaf, 166 N. Y. 339, 59 N. E. 993, 82 Am. St. Rep. 659); and so it is equally settled that a quitclaim deed is sufficient to pass along the covenant running with the land (Jenks v. Quinn, 137 N. Y. 223, 33 N. E. 376; Uihlein v. Matthews, 172 N. Y. 154, 64 N. E. 792). The relation created by the respective grantors under their covenants was in effect that of indemnitor, and it is under this doctrine that the judgment in the Lyle action is claimed to be conclusive as against the defendant in this action; and so it is. asserted that, whatever defenses may have existed or now exist, all are merged in such judgment. This view of the law as an abstract proposition is not challenged by the defendant, as I understand it; but the judgment is attacked and claimed to be inadmissible because it purports to have been entered upon consent, and, broadly, the claim is made that such a judgment cannot bind one who stands in the position of a surety. The judgment as amended shows on its face that it was entered by default after proof made by the plaintiff in that action. A judgment by default is conclusive between the parties thereto and their privies and effectually binds an indemnitor who had notice of the action with an opportunity to defend the same. Conner v. Reeves, 103 N. Y. 527-532, 9 N. E. 439. There is no question in this case of fraud or collusion in the procurement of the judgment. I am of the opinion that the judgment as amended was receivable in evidence, and all existing defenses are merged therein. It was not incumbent upon the plaintiff to defend the Lyle action and contest the entry of judgment against him. Jackson v. Marsh, 5 Wend. 44. It is not clear what defense he could have interposed. He was ignorant of the existence of the separation deed; and, indeed, there is no evidence to establish knowledge of any kind on his or on Mr. Lyle's part. This was not the case with the defendant in this action. He possessed all the information necessary to defeat the Lyle action, if he had availed himself of the notice served upon him to defend the same; but he chose to ignore such notice and take his chances in an independent action, if one should be brought against him. This dilemma has now been met, and he finds himself confronted with a judgment which binds him as effectually as if he had been named therein. The law on the subject is clear. In Village of Port Jervis v. First National Bank, 96 N. Y. 550, the rule was declared by Chief Justice Ruger as follows: "But if the party who is ultimately responsible has notice of the pendency of an action against his indemnitee, and is given an opportunity to defend, and neglects it, he is still bound by the result of the action, and estopped from controverting, in an action subsequently brought against him by such indemnitee, the facts which were litigated in the original action." In Cornell v. Travelers' Insurance Company, 175 N. Y. 253, 67 N. E. 583, it was said: "The general rule seems to be that where one party, either by express contract or by a rule of law, is obliged to indemnify another against some liability, if the party indemnified gives notice to his indemnitor of the institu 106 N.Y.S.-70 and 140 New York State Reporter tion of an action against him for such liability, the indemnitor is concluded by the recovery of the judgment against the party indemnified. There are numerous cases in this state supporting this doctrine." In 11 Cyc. 1106, the rule is stated as follows: "A covenantor to whom due notice has been given to come in and defend an action against his covenantee involving the title of the land conveyed, in which judgment is rendered adversely to the covenantee, is in a subsequent action on his covenant concluded by such judgment, and is estopped to deny its regularity and justice." See, also, 11 Cyc. 1157. If the judgment exceeds the true value of the dower right, the defendant is solely to blame; and what was said by the Court of Appeals in the most recent authority on the subject is applicable here. In Olmstead v. Rawson, 188 N. Y. 517, 522, 81 N. E. 456, 457, the court through Hiscock, J., said: "It would appear that her dower right has been fixed at a larger sum than was proper. But, whether this is so or not, we think that appellant should be bound by the judgment in the dower action in respect to this item, and that neither legally nor equitably is he entitled to any relief in respect thereto. He had full notice of the commencement of the action and was properly requested to defend the same, and having seen fit to ignore the action, with the covenants of warranty and quiet possession outstanding against him, he is not entitled to any particular sympathy if a judgment has been rendered which is unduly unfavorable to him." I am not unmindful of the apparent hardship which this finding imposes upon the defendant; but, with the judgment binding upon the court, there was no way of escaping the conclusion reached by me. But the position of the plaintiff is not to be overlooked. In making the payment to clear what appeared on the face of the records to be a cloud upon the title, Lyle, the then owner, was led so to do because of his ignorance of the existence of the separation deed. Before the money was paid, however, inquiry was made of defendant's counsel in respect of this dower right, but no definite information was vouchsafed. The title company, examining the title for the purpose of making a loan on the property, was informed that: "It is not part of Mr. Morette's business to clear away alleged defects in a title for the purpose of enabling your company to make a loan thereon. When Mrs. Bostwick has made good her alleged claim to dower, which we insist was properly and effectually canceled and released more than 19 years ago, it will be time enough to look to Mr. Morette on his warranty." Again the title company was advised, in a subsequent letter written by the defendant's counsel: "We are authorized by Mr. Morette to state that he declines to take any steps whatever to purchase or adjust the said alleged dower rights." Neither of these letters states that the dower had been released by the acceptance of a pecuniary provision in lieu thereof. The parties were kept. in ignorance of this situation; and thereupon, speedy action being required, Mr. Lyle had either to clear what appeared to the title company to be a defect in the title or pay the mortgage loan. He chose the former, as perhaps the easiest method, and procured from the defendant's wife a release of her dower. Thereupon, as already indicated, he brought an action and recovered judgment against the plaintiff; and when this action was brought plaintiff for the first time learned of the separation agreement. It seems to me the fault is all on the defendant's side. Had he defended the action, which he was invited to do, all questions which he seeks to raise in this action could have been determined, and both parties would have been fully protected in their rights. Plaintiff is entitled to recover $1,324.60, the amount of the Lyle judgment against him, with costs of this action. Ordered accordingly. (56 Misc. Rep. 121.) GRANIERI v. NEW YORK SHOE REPAIRING CO. (City Court of New York, Special Term. October, 1907.) COURTS-CITY COURT-ATTACHMENT-DOMESTIC CORPORATIONS-JURISDICTION. Code Civ. Proc. § 636, providing for the issuance of an attachment against a domestic corporation, under section 3160, does not apply to the City Court. Action by Michael Granieri against the New York Shoe Repairing Company. Motion to vacate attachment. Granted. Catts & Catts, for the motion. Samuel H. Golding, opposed. O'DWYER, C. J. Section 3169, Code Civ. Proc., grants jurisdiction to the City Court in a proper case to issue a warrant of attachment against property in an action wherein the defendant is a foreign corporation or a natural person, and not otherwise. Section 636, Code Civ. Proc., provides for the issuance of an attachment against a domestic corporation, but that section of the Code does not apply to the City Court. Code Civ. Proc. § 3160. Motion to vacate attachment granted, with $10 costs. Motion granted, with $10 costs. (56 Misc. Rep. 125.) BRADLEY v. BLUE RIDGE HOSIERY MILL. (City Court of New York, Special Term. October, 1907.) 1. EXECUTION-VACATING-RECOVERY OF MONEY COLLECTED. An execution defendant can recover of plaintiff the amount of money, .with interest thereon, taken from its agent under an irregular execution issued and subsequently vacated. 2. SHERIFFS-FEES-POUNdage. Where a sheriff acted under an execution valid and regular on its face, he is entitled on completion of the service to his poundage, though the execution and process were vacated, such poundage to be paid by the plaintiff in execution. Action by Gordon B. Bradley against the Blue Ridge Hosiery Mill. Judgment for plaintiff. Motion to compel plaintiff, or sheriff, to refund certain moneys taken on an execution subsequently vacated. Order granted. J. C. Kadane, for plaintiff. F. N. Orlando, for defendant. Maurice B. Blumenthal, for sheriff, and 140 New York State Reporter DELEHANTY, J. Upon the conceded facts of this case I am of the opinion that the defendant is entitled to recover, primarily of plaintiff, the amount of money, with legal interest thereon, which was taken from its agent under the irregular execution issued and subsequently vacated herein. If there be any doubt about this, an examination of the statutes and authorities applicable thereto will soon dispel it. See the provisions of law regulating the fees of the sheriff of New York county, viz., Laws of 1890, p. 936, c. 523, as amended by Laws 1892, p. 868, c. 418, § 17, subd. 7; also Campbell v. Cothran, 56 N. Y. 279; Kidd v. Curry, 29 Hun, 215; and on the question of restriction, Haebler v. Myers, 132 N. Y. 363, 30 N. E. 963, 15 L. R. A. 588, 28 Am. St. Rep. 589. The sheriff having acted under an execution valid and regular on its face, he is entitled, the service having been completed, to his poundage, notwithstanding the judgment and process were vacated. If so entitled to his fees, it follows they must be paid by plaintiff, the party upon whose initiative he made the levy; and it is no answer thereto to say that he is barred of his fees under the execution simply because the warrant of attachment herein is still standing. I conclude, therefore, that the order of August 9, 1907, should be vacated, and that an order be entered in lieu thereof directing and requiring the plaintiff, or his attorney, to pay over and deliver to W. M. Alling, the person from whom the money was taken under the execution referred to, the sum of $819.05, the amount collected, with interest thereon from the date of such collection, together with $10. costs of this motion; plaintiff to be stayed in the action until compliance therewith. Ordered accordingly. (56 Misc. Rep. 126.) KELS v. WEST et al. (Yates County Court. October, 1907.) MORTGAGES-SALE-ORDER OF OFFERING FOR SALE. Two parcels of land were mortgaged to secure a certain debt, and one of them was thereafter released and a new mortgage given on it by the original mortgagor as collateral security to the first mortgage. The mortgagor thereafter sold the parcel that was not released, retaining title to the parcel that had been released and remortgaged. Held, on foreclosure of both mortgages, the parcel covered by the collateral mortgage still belonging to the mortgagor should first be sold to pay the mortgage debt. [Ed. Note.—For cases in point, see Cent. Dig. vol. 35, Mortgages, § 1516.] Action by George Kels against Jacob West and others for foreclosure of mortgages. Motion for confirmation of report of referee as to surplus money. Report confirmed. George S. Sheppard, for the motion. KNOX, J. Upon foreclosure of two mortgages in this action, held by plaintiff, a surplus has arisen of $117. To this surplus the defendant Lewis lays claim under a mortgage held by him upon one of the parcels sold. The plaintiff insists he is entitled to it because of a judgment recovered by him against the defendant West. September 20, 1884, West gave a mortgage to Freeman in the sum of $1,125, on two pieces of land, one of 114 acres and the other 712 acres. March 28, 1885, the mortgagee released to the mortgagor the 712 acres from the operation of this mortgage, and then, on March 29, 1890, assigned the mortgage then resting on the 114 acres to the plaintiff. April 15, 1885, West executed another mortgage to Freeman covering the 72 acres above mentioned and a small piece of 3 acres. The latter piece of 3 acres is not involved in the foreclosure action. This last-mentioned mortgage recited that: "This mortgage is made as collateral security to a certain mortgage made and executed by the said Jacob West to the said Benjamin F. Freeman to secure the payment of the sum of $1,125 and interest thereon in five years from the 1st day of April, 1885. Said mortgage is dated on the 20th day of September, 1884, and recorded in Yates county clerk's office, in Liber 43, at page 174, on the 7th day of November, 1884. This grant is intended as a security for the payment of the sum of $1,125 in five years from the 1st day of April, 1885, with interest thereon from April 1, 1885; said interest payable annually on the 1st day of April of each and every year according to the terms and conditions of the said mortgage." This mortgage was also assigned to the plaintiff, and the two mortgages are set out in the complaint. February 1, 1887, West conveyed the 1114 acres to one Margeson, and on the same date took a mortgage thereon for part of the purchase money. This mortgage was assigned by West to the defendant Lewis. April 13, 1905, the plaintiff recovered a judgment against West and another for $130.70. Upon the sale the 712 acres were first sold, the proceeds of which were insufficient to satisfy the mortgage claim of plaintiff; and thereupon the other parcel of 1114 acres was sold and sufficient funds were obtained to satisfy the plaintiff's mortgage claim and leave the surplus of $117. Notwithstanding the order in which the two parcels were actually sold, counsel for the judgment creditor insists that the sum realized for the parcel last sold should first be applied on the mortgage debt, thereby extinguishing the mortgage lien and claim of Lewis, and that then the surplus in question would be regarded as having arisen from the sale of the other parcel, and consequently would belong to the judgment creditor. It seems to me, however, that, in case an application to the court had been made for directions as to the order in which the parcels should have been put up for sale, direction would necessarily have been given to sell the premises in the order which was actually adopted and followed by counsel for plaintiff in the action. The referee has reported the surplus to belong to Lewis by virtue of his mortgage claim. I can see no error in the report, and therefore conclude that the same should be confirmed. |