Lawrence v. . Campbell , 32 N.Y. 455 ( 1865 )

Per curiam:

The appeal having been brought within the time limited by the statute, the appellant has a right to prose cute it unless he is estopped by the special circumstances existing when it was brought. The appellant has recovered judgment for an equal amount against the obligees on the indemnity bond which he had taken; but he has not obtained satisfaction within about one thousand dollars. To that extent his indemnity appears to have failed. The judgment against the sureties on the limit bond does not operate by way of strict estoppel, because it was between other parties; and estoppels, to be available, must be mutual. And it is not an equitable estoppel, because under it the sheriff did not realize the whole amount which he would be obliged to pay if the judgment against him should be collected. If that judgment is erroneous, he ought to have it reversed, and thus to save himself from loss. We cannot, on this motion, determine what, in case of the reversal of the principal judgment, shall be done with the money collected of the sureties on the limit bond. The plaintiffs certainly will not be entitled to it, for it will then appear that they had no cause of action. It would seem equitably to belong to the sureties. It will be in the power of the Supreme Court to order it to be paid to them. Ho doubt there is an inconsistency between' the judgment which the defendant has obtained against the sureties and that which he seeks for in the reversal of this judgment. But the plaintiffs, being strangers to the judgment against the sureties, cannot avail themselves of it to set aside the appeal.

Motion denied.