Opinion
January 3, 1913.
Terence Farley, for the appellant.
Rufus O. Catlin, for the respondent.
The facts leading up to this controversy were stated by Mr. Justice McLAUGHLIN on a prior appeal in this action ( 130 App. Div. 748). On that appeal this court reversed a judgment in favor of the plaintiff for the exclusion of evidence offered to show that the payment of the Winant judgment was made in bad faith. We said, upon the authority of City of New York v. Baird ( 176 N.Y. 269), that the defense interposed involved two questions: 1, whether the payment to Winant was made in good faith, and, 2, whether it operated to the injury of the bank. On this trial the said excluded evidence was received, and, even assuming that it tended to show bad faith on the part of the city, it failed to show injury to the defendant. On the contrary, the undisputed evidence shows that the defendant was not injured.
Of course, the important question on the second branch of the case was whether the Winant judgment could have been reversed on appeal. If it could not, the indemnitor was not injured by its payment. The attorney who represented the indemnitor, this defendant, testified that the question which he desired to raise on the appeal from the Winant judgment was whether the work was done by Winant on the Lexington avenue paving, for which the defendant's assignor, Gavin, had the contract in question, or upon some other contract of Gavin. The stenographer's minutes of the trial, resulting in the Winant judgment, are in evidence. The testimony discloses without contradiction that the work done by Winant consisted of carrying earth by boats from Fifty-fourth street, East river, to One Hundred and Sixth street, Harlem river, to be used for grading Lexington avenue. The fact that the earth was obtained from places where Gavin was doing other work requiring excavation to be made is of no consequence. Upon the undisputed evidence, Winant was entitled to recover under the decision of the Court of Appeals. ( Mechanics Traders Nat. Bank v. Winant, 123 N.Y. 265.) Manifestly, then, the indemnitor was not injured by the payment of the judgment, and the plaintiff's motion for a direction of a verdict should have been granted. It is to be noted that the city succeeded on the new trial of City of New York v. Baird ( 117 App. Div. 659; 191 N.Y. 501).
The finding that defendant sustained damages is reversed, and judgment and order are reversed, with costs, and a judgment directed in favor of the plaintiff, with costs, on its motion for a directed verdict, made at the close of the evidence.
INGRAHAM, P.J., LAUGHLIN, CLARKE and SCOTT, JJ., concurred.
Judgment and order reversed, with costs, and judgment ordered for plaintiff, with costs, as directed in opinion. Order to be settled on notice.