More v. Rand , 6 Daly 79 ( 1875 )

Charles P. Daly, Chief Justice.

It may be that the court would order a bond to be given up and canceled in a case analogous to that in which it would direct an exonerator to be entered on the bail bond; but it is not necessary to decide that question. It may be also that this, though an equitable action, is to be regarded as a mistrial, as all the issues have not been tried, the judgment having been reversed and a new trial ordered, because the judge, upon the trial, would not allow the defendants to prove their counterclaim. It does not follow, however, from this, that the giving of a bond to prevent the appointment of a receiver, should be ordered to be given up; for it is clear from the decision of the Court of Appeals, that they did not review the decision of the judge upon the issues, after the determination of which, he deemed the plaintiffs entitled to a receiver, or a bond in lien thereof, for the plaintiffs’ security in respect to the partnership’s property.

If all the proceedings upon the trial are void and of no effect, and in consequence thereof the obligation entered into by the sureties is no longer binding, it is available as a defense to an action upon the bond, or the order directing the giving of the bond, having its foundation in a proceeding which is proved to be a mistrial, might be appealable, as was held in Griffin v. Cranston (5 Bosw. 658). If, when the cause is brought to trial again, it shall be held that the former trial was utterly nugatory, and that the whole cause must be tried over again, there is sufficient, from our knowledge of what was proved on the former trial in this case, to entitle the plaintiff to the appointment of a receiver, or in lieu of that appointment, security for the partnership property; and if, on that trial, a receiver is appointed and the property of the partnership is transferred to him, or a new bond is given, in lieu of a receiver, the defendant would then be in a position to ask the court to order that the present bond be delivered up and canceled. There is no reason why the order should be made now, and the application by the defendants was properly denied. The order of the special term should therefore be affirmed.

Larremore, J., concurred.

Order affirmed.