Opinion
Argued March 26, 1877
Decided April 27, 1877
Henry R. Selden, for the appellant. W.F. Cogswell, for the respondent.
The undertaking upon which this action was brought was apparently executed to enable the plaintiff in the action in which it was entitled to obtain possession of the property therein described, under the provision of § 209 of the Code of Procedure. The defendants here had no knowledge that the property was not in the possession of the defendants in the action brought, and that no delivery of the same could be had by the sheriff; nor that proceedings were not to be had or taken in pursuance of law, applicable to such cases; nor that said undertaking was not to be used, and was not used to obtain the delivery of such property. It does not appear, however, that the risks of the defendants were in any way increased by the fact that the property was not at the time in the possession of the defendant in the action brought to recover possession of the property, and that the plaintiff therein had possession of the same. The effect of the proceeding was to deliver it to the plaintiff in said action, and as the plaintiff had possession the result was the same as if it had been so delivered. It was then the same as if taken from the defendant in said action, and such being the case the hazard incurred upon the undertaking by the defendants in this action was no greater than if it had been thus delivered. While the sureties evidently labored under a misapprehension as to the facts, and had a right to know all the facts relating to the contract, it is not entirely clear that the risks of the sureties were increased by a failure to carry out the purpose for which the undertaking was executed, in accordance with the provisions of law, so as to discharge them from the liability they incurred. There are, however, other objections to the validity of the undertaking, which are not free from difficulty.
As an original question, I should be inclined strongly to the opinion that by the established rules of law fixing the rights and obligations of sureties, they were entitled to full knowledge of all the facts which related to the delivery of the property, and its actual situation, and that the failure to impart information on the subject, or a misrepresentation of material facts, or a suppression of the truth as to the same, would operate to relieve them from liability. So also if the question were a new one it might well be doubted whether the undertaking in question was not invalid because it was never delivered to or approved by the sheriff, as required by § 209 of the Code of Procedure, and inasmuch as the statutory proceedings were not taken, and the undertaking was not used to accomplish the purpose for which the statute required it to be given, that a sufficient consideration was shown to establish its validity. There are some authorities which tend strongly to uphold the views of the appellant's counsel in the direction indicated. (See Bonmaker v. Moore, 3 Price [Am. Condensed Ed.], 37; Nickerson v. Chatterton, 7 Cal., 568.) But whatever reasons may be given for sustaining any of the objections referred to, we think that they have been substantially overruled by the decisions of this court in regard to the very questions considered. And it appears to be settled, that the parties to an undertaking of this character may waive the formalities of the statutory proceeding and thus become estopped from asserting or proving its invalidity by the recitals in the same. The undertaking in question upon its face appears to have been given in an action brought by the water works company against the plaintiff in this action. It sets forth that the plaintiff claims the delivery of personal property, and the defendants undertake that the plaintiff shall prosecute the action and return the property to the defendant in the action, if such return be adjudged.
In Coleman v. Bean (1 Abb. [Ct. of Appeals Decisions], 394), in an action against the sureties upon an undertaking purporting to have been given to procure the discharge of an attachment, it was held that it was not essential to its validity that an attachment shall be actually issued, or that the undertaking be delivered to the court or an officer, and that the recital was conclusive evidence of the waiver of the issue of an attachment. It was also decided in the same case that it was not competent to show that no attachment was issued, or that the sureties were induced to execute the undertaking by representations which were false. It is laid down in the opinion that the non-compliance with the provisions of the statute was but an irregularity which the defendant may waive, and it is said that "It is enough that the undertaking is binding between the principal parties under the circumstances to hold the sureties." It is claimed that a distinction exists between the case cited and the one at bar, but it is difficult to see any snch difference as would authorize the conclusion that the case cited is not in point. The doctrine of waiver is equally applicable to both cases, and the defendants are equally estopped by the recitals here as they were in the case cited. Most surely it would be obligatory upon the principal parties in the action, and if such be the case, then as is laid down the sureties are liable, and bound by the acts of the principal. The opinion of the judge at Special Term presents some considerations in support of the distinction which is claimed to exist, but we think that no sufficient reason is made to appear for holding that the case last cited is not analogous. As it is directly in point, we are not at liberty to disregard its authority, and the question must be considered as res adjudicata. See also, Decker v. Judson ( 16 N.Y., 439), where it was held that the execution of a bond by another surety beneath the name of other obligors without the knowledge or consent of the previous sureties, as a condition of the postponement of a trial, estopped the last surety from denying the recitals in the same, which imported that it was executed upon the institution of a replevin suit, and taken at a time when it was lawful and proper to take the same.
Within the principle referred to, the doctrine of estoppel was clearly applicable to the defence interposed, and the order of the General Term should be affirmed.
FOLGER, RAPALLO and EARL, JJ., concur; CHURCH, Ch. J., and ALLEN, J., dissent; ANDREWS, J., absent.
Order affirmed.
Judgment accordingly.