Patino v. Patino
| Decision Date | 12 May 1959 |
| Citation | 185 N.Y.S.2d 567,8 A.D.2d 90 |
| Parties | In the Matter of Supplementary Proceedings: Cristina de Bourbon PATINO, Judgment-Creditor-Respondent, v. Antenor PATINO, Judgment-Debtor, Peerless Insurance Company, Surety-Appellant. |
| Court | New York Supreme Court — Appellate Division |
Alfred A. Marra, New York City, of counsel (John G. Turnbull and Daniel J. Loughlin, New York City, with him on the brief, Turnbull & Bergh, New York City), for surety-appellant.
Emanuel Lewis Greene, New York City, of counsel (William Russell Bogert and Richard Heller, New York City, with him on the brief, Patterson, Eagle, Greenough & Day, New York City), for judgment creditor-respondent.
Before BOTEIN, P. J., and BREITEL, RABIN, M. M. FRANK and STEVENS, JJ. STEVENS, Justice.
In this consolidated appeal the surety-appellant, herein called surety, appeals from (1) an order made and entered October 1, 1958, which directed that bail of $50,000, previously declared forfeited on September 30, 1958, be paid by the surety to the judgment creditor, herein called creditor; and (2) an order entered January 23, 1959, denying surety's motion to vacate an ex parte order amending the undertaking.
July 15, 1949, creditor obtained a judgment against Antenor Patino, the judgment debtor, herein called debtor. July 30, 1957, a warrant was issued for debtor's arrest. The warrant as allowed by Justice Spector directed that upon apprehension of the debtor he be brought before Justice Spector or any Justice presiding at Special Term, Part II; further, if the apprehension occur between 2 P.M. and 10 A.M. of the day following, or at any time when the Court was not in session 'the Judgment Debtor shall be released under $50,000 bail.'
The debtor was apprehended September 26, 1958, about 5:25 P.M., thereafter taken before the Justice who allowed the warrant, and released on bail after an undertaking was executed in the amount of $50,000. By the terms of the bond the obligee was the and it was conditioned upon the appearance of the debtor in Special Term, Part II, on September 29, 1958.
On September 29, 1958, the debtor defaulted in appearing, an application was made for forfeiture on the bond, and the matter adjourned to September 30, 1958, at which time the bail was declared forfeited. The attorney for the debtor pointed out that he was 'not in a position to oppose the forfeiture of the bond to the judgment creditor.' It was directed that notice be given to the surety and all parties appear October 1, 1958.
On October 1, the creditor appeared personally with her attorney and the other parties appeared by counsel. At that time the attention of the Justice presiding was directed to the named obligee on the undertaking and he was informed correctly that the Justice who approved the undertaking intended that the creditor be named as obligee. The attorney for the debtor expressed a similar view. Over objection of the surety an order was signed directing payment of $50,000 to the creditor, and providing that upon such payment the surety be exonerated. The surety appeals from that order.
On October 2, 1958, the Justice who had approved the undertaking, on his own motion, by ex parte order, amended the bond or undertaking nunc pro tunc to name the creditor as obligee. A motion to vacate such order was denied by order dated January 23, 1959, and the appeal from that order is also before us.
It should be pointed out that a letter dated December 23, 1958, from the Attorney-General, addressed to the surety, asserted that the Attorney-General after inquiry is satisfied that the People of the State of New York have no interest in the bond.
On this appeal, among the several grounds advanced, the surety argues that bail here may be proceeded against only by an action; that the undertaking was a nullity; that the order of October 1, was contrary to the express terms of the bond; that the bond could not have been corrected without a proceeding to reform it and therefore the exparte order should have been vacated; that the court was without jurisdiction and there was no consent by the debtor's attorneys.
The respondent characterizes the appeal as frivolous, asserts that no plenary suit is necessary and that the court had inherent power to correct what respondent terms an obvious error in the bond.
Attention is directed to two sections of the Civil Practice Act dealing with arrest. One refers to a warrant of arrest issued in proceedings supplementary to judgment, § 775, subd. 3; the other to the issuance of an order of arrest in the exercise of the equitable jurisdiction of the court (§ 827). The warrant of arrest here falls within the provisions of § 775, subd. 3.
Under the provisions of § 776, the court may require an undertaking of the debtor after the debtor is brought before him when it 'appears to the satisfaction of the judge, from the debtor's examination or other proof, that there is danger that he will leave the state or conceal himself'. The surety argues since there was no hearing or examination the subject undertaking is a nullity. This argument is totally without merit. The Justice who approved the undertaking was the Justice who allowed the warrant originally. The warrant which was before the court recited, and it is fair to assume it was on such basis that the warrant was issued and allowed, 'that the Judgment Debtor, Antenor Patino, will be coming into the State of New York, and that when he does come into this jurisdiction he will probably leave the State of New York within a very short time, and that he had and at such time will have concealed property in his possession or under his control', etc. It was not requisite that the Justice before whom the principal appeared discard knowledge of matters to which his attention had been directed previously. There is nothing to indicate that the 'other proof' was not up to the standard set by the statute,...
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People v. Stuyvesant Ins. Co.
... ... obligees would substantially alter the terms of the contractual obligation and would, in effect, create a different contract (see Matter of Patino v. Patino, 8 A.D.2d 90, 185 N.Y.S.2d 567 (1st Dept.1959)). Thus, while Stuyvesant Insurance Company has acted irresponsibly and might face claims by ... ...
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ALNUTT v. State of NY
...to the limitations sic that a substantial right of a party is not thereby prejudiced." (Complaint, p. 2, citing Patino v. Patino, 8 A.D.2d 90, 185 N.Y.S.2d 567 (1st Dept. 1959). Plaintiff then explains the basis for his Fourteenth Amendment claim, Being that the Appellate Division 4th Dept.......