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(70 Hun, 479.)

SHULTES . SICKLES.

(Supreme Court, General Term, Third Department. July 8, 1893.)

1. EXECUTION-TIME OF ISSUANCE-EJECTMENT.

An execution on a judgment of re-entry in ejectment may be issued by leave of court even after 20 years from the rendition thereof.

2. SAME-MOTION FOR LEAVE-SERVICE.

Under Code Civil Proc. § 1378, a motion for leave to issue execution on a judgment of re-entry in ejectment need only be served on the defendant in the action.

3. EJECTMENT-TITLE TO MAINTAIN.

Where, in ejectment for nonpayment of rent, judgment is obtained against the party in possession, plaintiff in ejectment can defend his title and possession so acquired against one claiming title under the lessee, though he was not a party to the ejectment suit.

LANDLORD AND TENANT-ATTORNMENT IN EJECTMENT.

Where judgment in ejectment is obtained in a durable lease, and possession given to the plaintiff, a written attornment made by the de fendant in the action and the person in possession is valid.

5. SAME EXTINGUISHMENT OF LEASE.

Where plaintiff in ejectment against a tenant under a durable lease for nonpayment of rent is put in possession under execution, his title becomes absolute after six months.

Appeal from circuit court, Albany county.

Ejectment by Arthur W. Shultes against Nicholas A. Sickles. Judgment for defendant. Plaintiff appeals.

Affirmed.

Argued before MAYHAM, P. J., and PUTNAM and HERRICK, JJ.

W. & G. W. Youmans, (W. Youmans, of counsel,) for appellant. Stedman, Thompson & Andrews, (G. L. Stedman, of counsel,) for respondent.

PUTNAM, J. This is an appeal from a judgment entered in Albany county on October 27, 1892, upon a verdict for the defendant, directed by the trial court. The action was ejectment. Both parties derived title under the lease executed by Stephen Van Rensselaer to Johannes Shafer, dated May 29, 1797, reserving an annual rent. Under said lease the lessor, Van Rensselaer, obtained judg ment of ejectment for nonpayment of rent on April 28, 1864, against John Sickles, then in possession of the premises in question. The rights of Van Rensselaer in said judgment and premises were duly transferred to Walter S. Church prior to January, 1883. The latter, on June 19, 1883, obtained an order of the special term giving leave to him, as assignee of the judgment, to issue execution thereon, the order reciting that it was granted on the affidavit of Walter S. Church, and on proof of the due service of said affidavit and notice of motion. Execution was issued, and the return of the sheriff indorsed thereon shows that Church was put in possession of said property on July 27, 1883. On that day John Sickles, the defendant in the action, and Nicholas A. Sickles, who were in possession of said premises at the time, executed a paper whereby they surrendered the possession thereof to Church, and acknowledged that they v.24 N.Y.s.nu.3-10

held the same as tenants at will under him. Church afterwards executed a deed of the land to defendant.

If the proceedings of Church under the judgment of ejectment were regular and authorized, it is clear that defendant, as assignee of the landlord's interest in said lease, has a title to the farm in question, under the judgment of re-entry, superior to that of the plaintiff, who claims title under the lessee named in said durable lease. When the order of June 19, 1883, allowing the issuing of the writ of possession or execution was offered in evidence, the only objection made by plaintiff to its reception was that the statute provides that no writ shall be issued to revive a judgment after 10 years from the time of filing the judgment roll, and the court had no power to issue the writ. This objection was not well taken. Van Rensselaer v. Wright, 121 N. Y. 626, 25 N. E. Rep. 3. An execution by leave of the court may be issued on such a judgment at any time, even after the lapse of 20 years from the rendition thereof. It is suggested by plaintiff that the notice of motion should have been served on Shultes, the plaintiff, but no such objection was made on the trial. Perhaps, if then made, it could have been obviated. Again, the statute only requires notice to be served on the defendant in the action. Therefore it was not necessary to serve on Shultes. Code Civil Proc. § 1378. In the action of ejectment for nonpayment of rent brought by Van Rensselaer, John Sickles, the party in possession of the demised premises, was properly made a defendant. It was not necessary to name Shultes as a party to the action, and the judgment against Sickles, while not conclusive against Shultes as to the averments of the complaint, yet, as it was obtained against the person in possession of the farm, it enabled Church and his grantee to defend his title and possession against plaintiff. Bradt v. Church, 110 N. Y. 537, 18 N. E. Rep. 357.

The plaintiff proved by the certificate of the sheriff that he delivered possession of said property to Church on July 27, 1883, and also read in evidence a written attornment made by John Sickles, the defendant in the action, and Nicholas A. Sickles, who were then in possession of said premises. The judgment having been obtained in pursuance of the provisions of the durable lease under which plaintiff claims title to said premises as lessee, and the ef fect of the judgment being to terminate the lease, (Van Rensselaer v. Wright, supra,) we think the attornment was not in violation of the provisions of the statute. See Witbeck v. Van Rensselaer, 64 N. Y. 32; Newell v. Whigham, 102 N. Y. 20, 6 N. E. Rep. 673. Under the execution, Church having been put in possession of the premises on July 27, 1883, the writ and return thereon were filed in the county clerk's office on August 4, 1883. After the lapse of six months from the time the landlord was so put in possession under said judgment, viz. on January 27, 1884, his title to the property became absolute. The lease then, if not before, was terminated. Church then became the owner of the property, the rights of the tenants therein being extinguished the same as if said lease had never been executed. But it is claimed by the plaintiff that

Church released to the plaintiff his right to said premises derived under the aforesaid judgment and the execution issued thereon. The release executed by Church to Shultes on January 12, 1885, does not appear to be intended as a release or conveyance of his interest in said farm, of which the former had become the absolute owner. It was apparently not so intended, for on the same day Church conveyed said premises to the defendant. Again, Church, having absolute title, and the time for redemption having expired, could only convey to plaintiff the premises in question by an instrument under seal. Again, the paper in question does not purport to be a release by him of his right derived under the aforesaid judgment on a redemption by the tenant. It is apparently intended to be a mere release to Shultes from liability for rents that had accrued upon the lease. We are unable to see that the rights of the parties are at all affected by the two offers made by Church to plaintiff. The first offer, dated in October, 1883, recited the recovery of the judgment in favor of Van Rensselaer against John Sickles, and that Church on July 27, 1883, had duly taken possession of the premises, and offered within the time prescribed by statute for redemption to receive from Shultes, who, the notice stated, claimed some interest in said land, $300 as his proportion of the rents, and on payment of said sum to release the judgment. There is no evidence whatever that Shultes accepted the proposition or complied with the terms of the offer, or ever paid the $300. The second offer, dated November 12, 1884, as far as pertinent to the question under consideration, contains an agreement on the part of Church, on the payment of the judgment for $1,500 obtained by Nicholas Sickles against Joseph I. Shultes, which was assigned to Church on or before April 1, 1885, to release Shultes from "arrears of rents and reservations and soil on the land and premises known as the 'Sickles Farm.'" The offer provided that notice should be given of acceptance by said Shultes within five days from date. It was not shown that Shultes ever gave such notice or acted upon th offer. We think the learned trial judge took the correct view of this case, and that the judgment should be affirmed, with costs. All concur.

(70 Hun, 202.) MALONEY v. NELSON et al.

(Supreme Court, General Term, First Department. June 30, 1893.) FORECLOSURE of MortgagE-INDEMNIFYING SURETY ON BAIL BOND.

A surety on a bail bond, who takes a mortgage from his cosurety to se cure him against loss by reason of his suretyship, cannot foreclose the mortgage before he has paid anything on account of the bond, though the latter has been forfeited.

Appeal from special term, New York county.

Action by Dennis Maloney against Samuel Nelson and others to foreclose a mortgage. From a judgment of foreclosure, defendant Nelson appeals. Reversed.

Argued before VAN BRUNT, P. J., and FOLLETT and BARRETT, JJ.

James M. Smith, for appellant.

Kellogg, Rose & Smith, (A. J. Rose, of counsel,) for respondent.

VAN BRUNT, P. J. It appears that prior to the 16th of October, 1891, one Thomas O'Brien had been indicted by the grand jury of Albany county, and on his arrest had been held to bail, to answer such indictment, in the sum of $10,000. Various efforts were made to procure bail for said O'Brien, in which benevolent enterprise the defendant seems to have interested himself; and on the 16th of October, 1891, he went to Albany, and thence to the office of the counsel of O'Brien, and was there told that such counsel would get some one to go on the bond with him, and that it was necessary that the gentleman he was to get to sign the bond should be indemnified in such a way as to guaranty the presence of O'Brien, and in case of default the bond should mature. The defendant at first refused to give such guaranty, but later in the day he appeared, and said it was all right, and for the counsel to go ahead. Subsequently the plaintiff and the defendant became bail for O'Brien, and he was discharged. After such discharge the parties went to the office of O'Brien's counsel, and there the bond and mortgage in suit were drawn up by the defendant Nelson, and delivered to the plaintiff. The condition of this bond was that:

"Whereas, the said Maloney has signed as one surety a bond or recognizance, in the penal sum of ten thousand dollars, that Thomas O'Brien shall appear to answer against him in whatever court it may be prosecuted, and shall at all times render himself amenable to the orders and process of the court, and if convicted shall appear for judgment, and render himself in execution thereof, and which bond or recognizance was entered into this day before Hon. Jacob H. Clute, Albany county judge: Now, therefore, if there shall be no default in the said bond or recognizance so signed by said Maloney, then this obligation to be void; otherwise, to remain in full force and virtue."

When the case of People v. O'Brien was called at the court for trial, O'Brien did not appear, and the bail bond given for his appearance, on which Nelson and Maloney, the parties to this action, were sureties, was forfeited, and this action was commenced. After the commencement of the action a suit was brought on the bail bond, and judgment recovered against Nelson and Maloney, which judgment is yet unpaid; the execution thereon having been returned unsatisfied as to the defendant Nelson, and property of Maloney being under levy and advertisement for sale. Upon these facts the court directed judgment in favor of the plaintiff, and from the judgment entered thereon this appeal is taken.

Various grounds are urged in support of this appeal: That the contract was one to indemnify the plaintiff, and against public policy; that there was no consideration for the obligation; and also that it was error to refuse certain requests. It seems to us that it is not necessary to consider the question as to whether a contract of indemnity is against public policy in a criminal action

or not.

It is perfectly apparent that the giving of this bond and mortgage was intended to indemnify Maloney for whatever he should be required to pay by reason of his having become bail for O'Brien. If such was not the contract, then the bond is utterly without consideration, because it is conceded that the plaintiff paid nothing to the time of the execution of the bond. On the contrary, the only person who got any money appears to have been the plaintiff, who got $1,000 for becoming the bail of O'Brien. The plaintiff, therefore, certainly has no right to recover, as he has paid nothing upon his bail bond, has suffered no damage as yet, and there is nothing in respect to which he is to be indemnified. If, as already stated, this bond and mortgage were not given as an indemnity, then they were absolutely without consideration. The result of the decree of foreclosure in this action, as against Nelson, shows at a glance that the plaintiff, in the present condition of affairs, can have no right to recover. Suppose that Maloney receives $10,000 upon the foreclosure of this property, and never pays any part of the bail bond, is never required to pay any part of the bail bond, and Nelson is required to pay the whole of it. The result would be that Nelson would be paying $20,000 upon an obligation of $10,000, and Maloney would be $10,000 in pocket. The mere statement of this proposition shows that the claim advanced upon the part of the plaintiff cannot be maintained. It is perfectly clear that, at the time of the commencement of this action, Maloney had no claim whatever. His contract of indemnity had not then been violated; and if there was no contract of indemnity he had no claim, even if he had such claim of contract of indemnity existed, and had been violated. It seems to be clear, therefore, that the judgment was erroneous, and must be reversed, with costs to appellant, to abide event. All concur.

(70 Hun, 296.) JAMES v. WORK.

(Supreme Court, General Term, First Department. June 30, 1893.)

1. DECEIT EVIDENCE-PREVIOUS TRANSACTIONS.

In an action to recover money lost in certain investments, which plaintiff had been induced to make with a certain firm through false representations of defendant, transactions previous to those mentioned in the complaint may be proven as tending to show the relation of the parties.

2. SAME.

The complaint in such case claimed to recover sums alleged to have been obtained at certain dates. Between those dates plaintiff withdrew more than he invested. The court charged that, if plaintiff had a cause of action, and this money was advanced, and lost through the fraud of defendant, recovery might be had for the entire amount or any less amount. Held, that the charge did not allow recovery for a different cause of action than that alleged.

& SAME-PLEADING AND PROOF.

The fact that no money passed at the dates mentioned between plaintiff and defendant did not show a variance between the proof and cause of action alleged, since, if defendant had collected any money belonging

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