O'Connor v. Such — 22 N.Y. Super. Ct. 318

Majority

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Owen O’Connor, Plaintiff and Respondent, v. George Such et al., Defendants and Appellants.

Headnote

Where an action upon an official bond, e. g., the bond of an administrator, is brought in the name of an individual plaintiff, and not in the name of the people, the judgment should not be for the amount of the penalty, but only for the amount of the damages and costs.

(Before Bosworth, Ch. J., and Barbour and Monell, J. J.)

Heard, April 11, 1862;

decided, May 10, 1862.

This action was brought upon an administrator’s bond against Such, the administrator, and William F. Cary and Charles A. Heckscber, his sureties.

The Surrogate of the City and County of Hew York having made an order requiring Such, as administrator, to pay Owen O’Connor $2,240, on account of a claim of the latter against the intestate, and to pay the proctor of the latter seventy-five dollars costs, and the fees of the Surrogate accrued upon the accounting; and Such having failed to comply, the decree was docketed with the County Clerk and execution issued thereon, according to the statute, for the sum of $2,331.83, with interest. The execution being returned unsatisfied, O’Connor applied to the Surrogate for an order assigning the administration bond to him to prosecute, which being granted he brought the present action thereon. The complaint alleged these facts and demanded judgment for $20,000, the penalty of the bond, and that plaintiff’s damages be assessed and he have execution therefor, with costs.

The action was tried at a Special Term, held on the 17th of January, 1862, by Mr. Justice Robebtsom without a Jury, a Jury trial having been waived by the consent of the parties.

The Court found the facts to be substantially as above stated; and it was adjudged “that the plaintiff recover of the defendants twenty thousand dollars of debt, and eighty-two -r,ro dollars costs, disbursements and allowance; and, further, that the plaintiff have judgment and execu

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tion against the said defendants for his said damages, together with the costs of this action; which, together, amount to the sum of two thousand four hundred and sixty-eight dollars and eighty-eight cents.”

The defendants duly excepted to the decision; and appealed from the judgment to the Court at General Term.

D. B. Eaton, for defendants, (appellants.)

I. If the action had been brought by the people, to whom the bond was made payable, and had been on behalf of all parties interested therein, there would have been plausibility in giving judgment for the whole $20,000, provided there had been proper provisions for only collecting the amount for which the sureties were really liable, and for the discharge of the judgment at the proper time. But the plaintiff has sued for himself alone, (and not in ■the name of the people even,) and though Ms interest in the security is only $2,468.80, he has an absolute judgment in Ms favor for $20,082.64, in addition to the $2,468.80.

II. There is no provision by which the plaintiff can be compelled to satisfy the $20,082.64 on the payment of the $2,468.80; but the larger sum would remain a lien on the property of the defendants.

III. There is no reason perceived why any other creditor may not sue the defendants and recover like judgments, though this excessive judgment remains of record.

IV. Judgment should be given only for the amount really due the plaintiff. (Dayton on Sur., 2d ed., 548.)

H. Brewster, for plaintiff, (respondent.)

The Revised Statutes, as to bonds for performance of covenants, are not repealed, and have been followed here properly; but if not, the party should have raised the question on motion to correct the judgment, not by an appeal on the merits.

The judgment is in the form prescribed by 2 R. S., 378, § 10, [sec. 9.] That

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statute, except as it is modified by the Code,, regulates the proceedings to be had in an action upon a bond for the breach of any condition other than the payment of money. This bond is of that character, not containing a condition in terms to pay money. (Lyon v. Clark, 4 Seld., 153.)

That statute allows but one suit on the bond; and provides that, if there be further breaches after judgment, a scire facias issue on the j udgment, &c., and also prescribes the mode of ascertaining thereby the damages. These provisions are intelligible and consistent where the party recovering the judgment is entitled to the damages for the subsequent breaches, or where the action may be brought, and all proceedings had, in the name of the obligee, although different persons are separately interested in the several breaches.

But if every person whom the bond is designed to protect may, in case of a breach violating his rights, sue in his own name and recover a judgment, it would seem that the judgment should be only for the amount of his damages. Otherwise there may be, in form, as many judgments for the amount of the penalty as there are suits and recoveries.

If the suit should have been brought in the name of the people, (the obligees,) the defect appeared on the face of the complaint. The defendants did not demur, but controverted some of the material allegations contained in it. This Court held in Baggott v. Boulger, ( 2 Duer, 160 ,) on a state of facts quite similar, that this defect, if it be one, cannot be availed of by an objection taken, for the first time, at the trial.

The only objection taken by the appellant on the argument of the appeal, is to the form of the judgment. It is insisted that the judgment should not have been given for the amount of the penalty, but only for the amount of the damages awarded, with costs.

There is no difficulty in assenting to this view, if it be law, that on a further breach occurring to the prejudice of

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the plaintiff, he may bring another action on the bond. It seems to have been assumed in Baggott v. Boulger, ( 2 Duer, 170 ,) that a new action maybe brought on each successive breach,.whether the suit be in the name of the people or in the name of the actual party in interest. This, possibly, may not be accurate, if the suit be in the name of the people; and that it may be, has been held, since the decision of Baggott v. Boulger, (supra,) in The People v. Norton, 5 Seld., 176.

If a suit on such a bond may still be brought in the name of the people, (and The People v. Norton, supra, so holds,) there may be some difficulties in the proceedings in respect to breaches occurring after judgment, which the facts in The People v. Norton would not necessarily suggest, and which are not considered in that case. The Code, (% 428,) abolishes the writ of scire facias, and provides that the remedies heretofore obtainable in that form, may be obtained by civil action under the provisions of chapter two of title XIII, of part two of the Code.

Section 471, [390,] of the Code does not retain the remedies prescribed by article 2, of title 6, of chap. 6, of part 3 of the Bevised Statutes. It is difficult, therefore, to see how any remedies can be had under sections 13 and 14, [sections 12 and 13,] of that article, and it may be that § 428 of the Code would make a new suit necessary, in case of a. breach subsequent to judgment. We recently had occasion-to consider the effect of that section on the remedy by scire facias, as it existed prior to the Code, to revive a judgment. (Ireland v. Litchfield, 8 Bosw., 634 .)

In this condition of the statutes, and in view of the decisions made under them, I see no objections to holding that the plaintiff may recover in this action the amount to which he is individually entitled by reason of the facts found, and that the judgment should be for that sum, with costs. In the case of an order of the Surrogate requiring different sums to be paid to different creditors, and a total failure to comply with the order, whether all the persons entitled to resort to a remedy upon the bond" should unite

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in the action, or may sue separately, are questions that do not now arise. (See Dayton’s Surrogate, [2d ed., p. 548, or 3d ed.J p. 582.)

The judgment should be amended by striking out the words “ twenty thousand dollars of debt,” and inserting in lien thereof the words, “ the said snm of two thousand three hundred and eighty-six dollars and twenty-four cents,” and by striking out, after the word “ allowance,” all that follows down to, and includingthe words “ costs of this action,” and by adding to the end of the judgment, as it now reads, the words, “ and that the plaintiff have execution therefor,” and as thus amended, it should be affirmed, without costs of this appeal to either party.