Maloney v. Nelson

• Decision Date: 18 December 1894
• Citation: 39 N.E. 82,144 N.Y. 182
• Parties: MALONEY v. NELSON et al.
• Court: New York Court of Appeals Court of Appeals

144 N.Y. 182

39 N.E. 82

MALONEY

v.NELSON et al.

Court of Appeals of New York.

Dec. 18, 1894.

Appeal from supreme court, general term, First department.

Action by Dennis Maloney against Samuel Nelson and others to foreclose a mortgage. From a judgment of the general term (24 N. Y. Supp. 147) reversing a judgment in favor of plaintiff, he appeals. Affirmed.

This action was brought to foreclose a mortgage given by the defendant to the plaintiff on the 16th of October, 1891. The mortgage recites that: ‘Whereas, the said party of the second part 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 the charge against him, in whatever court it may be presented, 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; and the said party of the first part is desirous of indemnifying and saving harmless the said party of the second part from any or all loss or damage upon said bond or recognizance: Now, therefore, this indenture witnesseth: that the said party of the first part, in consideration of the sum of one dollar to him in hand paid by the party of the second part, and for the better securing of the said party of the second part, does grant and release unto the said party of the second part, and to his heirs and assigns forever: [Here follows the description of the land mortgaged.] To have and to hold the above-granted premises unto the said party of the second part, his heirs and assigns, forever: provided, always, that whereas, the said party of the second part 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 the charge 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 the party of the second part, and as is provided by a bond of even date herewith, signed by the party of the first part, then these presents and the estate hereby created shall cease, determine, and be void. And the said party of the first part covenants with the party of the second part as follows: That if default be made in the above-named conditions, or any of them, the party of the second part shall have power to sell the premises therein described according to law.’ The mortgage was given in connection with a bond dated at the same time, and upon condition that it should be void under the same circumstances as are stated in the mortgage. It appeared on the trial that on the 2d of November, 1891, a term of the court of sessions was held in the county of Albany, at which Thomas O'Brien was bound to appear under the conditions of the bail bond above mentioned, and that he then failed to appear, or to hold himself amenable to the orders or process of the court. Thereupon the recognizance entered into by him and by the plaintiff as his bail was duly forfeited. The trial court found that, by reason of the failure of O'Brien to appear according to the condition of the bond, there was a breach of the condition contained in the mortgage herein, and of the bond accompanying the same, and that the sum of $10,000 secured by such bond and mortgage thereupon became due and payable to the plaintiff by the defendant. There was no proof upon the trial that the plaintiff had ever paid any money by reason of the bail bond which he had signed, but the court held that such proof was unnecessary; that by the terms of the mortgage it became due upon proof of the failure of O'Brien to appear in accordance with the bail bond; and that the measure of damages was the amount mentioned in the bond and mortgage, for which sum judgment of foreclosure was ordered. The general term, upon appeal, reversed the judgment in favor of the plaintiff, and granted a new trial, upon the ground that the bond was simply a bond of indemnity against the payment by the plaintiff of the amount of the bond which he had signed for the appearance of O'Brien, or such part thereof as he was compelled to pay. The plaintiff has appealed from such order, and given the usual stipulation for judgment absolute in case of affirmance.

O'Brien, J., dissenting.

Abram J. Rose, for appellant.

Roger M. Sherman, for respondents.

PECKHAM, J.

We think the court at general term was right in its construction of the bond and mortgage. The true question is, what was the intention of the parties to the mortgage? The circumstances appearing from the recitals, both in the mortgage and in the bond accompanying it, would seem to show beyond controversy that the intention of the parties was to obtain and to give indemnity to the plaintiff against any loss or damage which he might sustain by reason of being compelled to pay the amount, or any part thereof, named in the bail bond which he had signed. The plaintiff was under no obligation other than that contained in his bail bond, and, if the party for whom he went...