Summary
In Wehle v. Spellman (75 N.Y. 585) the action was brought upon an undertaking given to stay proceedings on an appeal from a judgment.
Summary of this case from Milliken v. Fidelity Deposit Co.Opinion
Argued December 6, 1878
Decided January 21, 1879
S.W. Fullerton, for appellants. Charles Wehle, for respondent.
The undertaking on appeal upon which this action is brought, was dependent upon and followed the judgment appealed from. The payment or satisfaction of the judgment would discharge the undertaking, and an assignment or transfer of the judgment would carry with it the security of the undertaking, though not mentioned in the transfer. The sureties on the undertaking were bound to pay only the lawful holder of the judgment, and on such payment were entitled to subrogation to all the rights and remedies of the holder of the judgment for its collection. The findings in this case show that at the time of the commencement of this action the judgment had been regularly attached at the suit of creditors of the judgment-creditor, and the right to collect the judgment had thus passed from the original judgment-creditor to the sheriff who levied the attachment. The judgment being the principal debt, and the undertaking a collateral security it passed with the principal debt, and the right to collect that necessarily included the right to enforce the collateral security. It was not necessary to attach the undertaking separately. It was an incident of the judgment, and not an independent liability of the sureties. ( Risley v. Brown, 67 N.Y., 160.) The sureties were not bound to pay the original judgment-creditor after her right to collect the judgment had been transferred to the sheriff. If they should so pay the original judgment-creditor, they would be deprived of their remedies over upon the judgment, as that could be enforced for the benefit of the attaching creditors, instead of the sureties. Before the judgment-creditor can maintain this action against the sureties, she must cause the attachments to be discharged.
This determination renders it unnecessary to examine the other points in the case.
The judgment should be reversed and a new trial ordered, costs to abide the event.
All concur.
Judgment reversed.