Kolb v. Nat'l Sur. Co.

• Decision Date: 13 October 1903
• Citation: 68 N.E. 247,176 N.Y. 233
• Parties: KOLB v. NATIONAL SURETY CO. et al.
• Court: New York Court of Appeals Court of Appeals

176 N.Y. 233

68 N.E. 247

KOLB

v.NATIONAL SURETY CO. et al.

Court of Appeals of New York.

Oct. 13, 1903.

Appeal from Supreme Court, Appellate Division, Fourth Department.

Action by John Kolb against the National Surety Company and others. From a judgment of the Appellate Division (76 N. Y. Supp. 1018) affirming a judgment for defendants, entered on a dismissal of the complaint, plaintiff appeals. Affirmed.

In December, 1897, Frank Smith recovered a judgment against this plaintiff and the defendants Theodore G. Smith and Stephen W. Adwen for $1,125.13, in an action to recover damages for wrongful and malicious conduct. Adwen appealed, and gave an undertaking, with this respondent, the National Surety Company, as surety. Subsequently his appeal was dismissed, and the judgment was affirmed. This plaintiff, Kolb, and Theodore Smith, defendants in the action, also appealed, and without undertaking; but pending the appeal Kolb settled with Frank Smith, the judgment creditor, by an agreement to pay $400 in any and all events, which sum, at the election of Smith, was payable before or upon the final determination of the action, and upon payment whereof he was to be released. The agreement reserved Smith's claim against Adwen to the extent of at least one-third of the judgment. Eventually all appeals were dismissed, whereupon Smith, the judgment creditor, in September, 1898, in lieu of enforcing his judgment by execution, commenced an action against the surety company to recover the whole amount of his judgment, and in that action had a judgment, in February, 1899, for $1,362.58 damages and costs. Subsequently, upon application of the defendant the surety company, it was ordered that upon its payment to Smith of the full amount of his judgment it should be subrogated to all of his rights under the judgment against Kolb and the other original judgment debtors, and to all securities, including his contract with Kolb. Smith complied with the order, assigned his judgments and his contract, and received payment in full of what was due him. Thereupon the surety company, being possessed of Smith's judgment, issued execution to the sheriff directing him to collect from Kolb $400 and from Theodore Smith $648.30. Adwen, the other judgment debtor, had paid the surety company $593.13, upon its agreement not to enforce the judgment further against him. That agreement also reserved to the company the right to collect the balance due on the judgment against the other judgment debtors. Theodore Smith was insolvent, and the amount named in the execution against him represented the balance remaining unpaid upon the judgment after deducting the sum of $400 agreed to be paid by Kolb, and the sum of $593.13 paid by Adwen. Upon the issuance of the execution, Kolb at once commenced this action against the surety company and the others to restrain the enforcement by the surety company of the judgment through the execution, and to compel the discharge of the judgment. At the Special Term the defendant the surety company was held to be entitled to enforce the judgment assigned to it by Frank Smith, and the plaintiff's complaint was dismissed upon the merits. The judgment entered upon that determination was affirmed by the Appellate Division in the Fourth Department, and the plaintiff, Kolb, has appealed to this court.Charles Van Voorhis, for appellant.

Nathaniel Foote, for respondents.

GRAY, J. (after stating the facts).

The appellant argues that when the surety company paid the judgment recovered by Smith the effect was the same as though Adwen, for whom it was surety, had paid the judgment against him and his codefendants; that, as a judgment recovered in tort, it was extinguished by the payment, and that no right of contribution against this...