Talbot v. New Amsterdam Cas. Co.
| Decision Date | 27 December 1923 |
| Parties | TALBOT v. NEW AMSTERDAM CASUALTY CO. |
| Court | New York Court of Appeals Court of Appeals |
OPINION TEXT STARTS HERE
Action by Benedict Bristow Talbot against the New Amsterdam Casualty Company. From a judgment of the Appellate Division of the Supreme Court in the First Department (205 App. Div. 525,199 N. Y. Supp. 726). reversing a judgment of the Trial Term for plaintiff and dismissing the complaint, plaintiff appeals.
Judgment of Appellate Division reversed and that of trial term affirmed.
Appeal from Supreme Court, Appellate Division, First Department.
Richard B. Hand and Matthew B. Sentner, both of New York City, for appellant.
Jerome C. Jackson and Kevie Frankel, both of New York City, for respondent.
Plaintiff obtained on March 12, 1913, a final judgment of divorce from her husband, Hayden Talbot, with alimony at the rate of $75 a month. More than eight years later, on June 8, 1921, she obtained an order of arrest under Code Civil Procedure, § 550, on the ground that her husband was a nonresident, and that there was danger that by reason of such nonresidence the judgment, which required ‘the performance of an act, the neglect or refusal to perform which would be punishable by the court as a contempt,’ might be rendered ineffectual. Such an order may be granted either before or after final judgment. Code Civ. Proc. § 551. On June 9, 1921, Mr. Talbot was committed to the county jail under this order of arrest, and held in bail in the sum of $3,000. On August 22, 1921, he gave bail by delivering to the sheriff an undertaking executed by the defendant, New Amsterdam Casualty Company, in accordance with Code Civil Procedure, § 575, subd. 1. This undertaking provides that--
‘The above-named defendant, arrested as aforesaid, will obey the direction of the court, or of an appellate court, contained in an order or judgment requiring him to perform the acts specified in the order, or in default of his so doing that he will at all times render himself amenable to proceedings to punish him for the omission.’
At the date of this undertaking the husband was already in default by reason of the nonpayment of alimony in the sum of $12,470;a motion to punish him for contempt had been made on June 21, 1921, while he was in jail under the order of arrest; and on July 6, 1921, while he was still in jail, an order adjudging him in contempt and fining him $12,470 had been entered. Service of the latter order was delayed until after his release, but on January 7, 1922, the sheriff made return that he could not be found. Thereafter and on January 16, 1922, plaintiff served the bail with a notice that the principal be produced in accordance with the undertaking, and that in default of such production suit would be begun. The demand was not complied with, and this action followed. The Trial Term directed a verdict for the plaintiff. The Appellate Division reversed and dismissed the complaint.
[2] We think the bail is liable. The defendant has undertaken that its principal will obey the direction of the court contained in an order or judgment requiring him to perform the acts there specified. He has not obeyed those directions. At the date of the undertaking there existed a final judgment which called for the payment of alimony at a stated rate. The duty thus imposed was a continuing one until discharged by payment. Payment has not been made. The defendant has also undertaken that, in default of obedience, the principal will at all times render himself amenable to proceedings to punish him for the omission. This also he has not done. An order has been made, and, by absenting himself when sought, he has frustrated its enforcement. In theory of law the principal is in the custody of his bail. Toles v. Adee, 84 N. Y. 222, 240. The duty of the bail is to produce him when his presence is essential to the enforcement of the judgment.
[3] The point is made for the defendant that the requirement of the undertaking is satisfied because the...
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...U.S. 527, 531, 62 S.Ct. 393, 86 L.Ed. 426 (1942). People v. McReynolds, 102 Cal. 308, 311, 36 P. 590 (1894). Talbot v. New Amsterdam Cas. Co. 237 N.Y. 245, 248, 142 N.E. 600 (1923). See Way v. Wright, 5 Met. 380, 383 (1843). The surety does not exercise this custody as the Commonwealth woul......
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