Fay v. Ames , 1863 N.Y. App. Div. LEXIS 178 ( 1863 )

By the Court, Welles, J.

There can he no doubt that the judgment in the action against the plaintiff, in favor of Van Duzer & dagger, was at least prima facie evidence of the facts it establishes, which show the clear liability of the present plaintiff, in that action. The appellant, however, offered to prove, on the trial, facts which he claimed excused his principal, the deputy sheriff, and by relation the sheriff, from liability to Van Duzer & dagger. 'If the facts so offered would, if proved, have had that effect, the evidence should have been received, unless the appellant was concluded by the judgment against the plaintiff. The deputy, E. Howard Ames, had due and timely notice of the commencement of the action against the plaintiff, and took upon himself the defense, in which the same matters offered on the trial in the present action to be proved, were set up ; but as to whether the appellant had notice, the evidence was contradictory. So much so that the jury would have been justified in finding either way.

On the hypothesis that the appellant was not concluded by the judgment, without notice, the evidence offered should have been received, and the question of notice to him submitted to the jury with instructions to find for the plaintiff if they found notice had been given, and if notice had not been given, to find for the appellant, provided the offer was sustained by sufficient evidence.

The only question, therefore, 'on this appeal, is, whether the appellant was concluded by the judgment against the pilaintiff • or whether he is at liberty to litigate over again, in this action, the sheriff’s liability in the action against him. My opinion is, both upon principle and authority, that the appellant is concluded by the judgment against the plaintiff.

The obligors upon the deputy sheriff’s official bond, who are the defendants in this action, became jointly as well as severally bound, among other things, that the deputy sheriff, who was one of the obligors, should well and sufficiently indemnify and keep harmless the plaintiff from and of all manner of all costs, charges, damages and expenses which he might incur or be put to by reason of any act or acts, omission or omissions of Ames, the deputy, in or about the execution of the office of deputy sheriff. The sheriff has been prosecuted for the acts of the deputy, and the latter had notice of the prosecution, and defended the action, and judgment was recovered against the sheriff, who has been compelled to pay the same. And he now calls upon the obligors to keep their covenant of indemnity, which can only be done by their responding to him the amount of such judgment, with interest. The appellant denies that, as to him, the covenant has heen broken, and offers to prove facts in exoneration of his principal which the latter lias once set up as a defense, in the action against the sheriff, but in which he failed to succeed. He says, virtually, that if he had had notice of the action against the sheriff, in proper time, he could have made the defense successful. I admit the existence of the general rule that a judgment is conclusive only against parties and privies. To this, however, there are exceptions. The defendants being jointly bound to indemnify the plaintiff, they were in privity of contract with each other, and are to be regarded and treated, quoad the contract, and the rights and liabilities connected with and growing out of it, as one person. In such a case notice to one is notice to all, on the same principle as where two or more persons are shown to be jointly bound by a contract, the acts and admissions of either are binding upon all the others, to the same extent as upon the one 'doing the acts or making the admissions.

It was no part of the plaintiff's agreement with the sureties in the bond that they should have notice of suits brought against him for the misconduct of the deputy; and their liability as indemnitors was not made to depend upon such notice. The law indeed required notice to the deputy, in order that he might defend, and discharge himself from the misconduct imputed to him, and for the purpose of rendering the judgment against the sheriff conclusive, if one should be obtained. I think notice to either of the joint obligors would have been sufficient, for the reasons already given. But the notice was very properly given to the deputy, whose conduct, only, was called in question, and who is presumed to have known the facts and circumstances far better than his sureties or the sheriff. If, in addition to giving notice to the deputy, notice had been given to the sureties also, it would have been little more than an idle and useless ceremony, as it is to be presumed that all they would or could have done would have been to refer the matter to their principal, the deputy, and cast the burthen of the defense upon him, as the sheriff has done.

By a fair and reasonable interpretation of the condition of the bond, the parties contemplated that actions might be brought against the sheriff for the acts or omissions of the deputy, and the covenant of indemnity in the condition was inserted to provide for such contingencies.

I think also that the authorities sustain the position that the judgment, under the circumstances, was conclusive against all the joint obligors. In Westervelt v. Smith, (2 Duer, 449,) the bond was, in respect to the clause of indemnity, substantially like the condition of the bond in the present case. The sheriff had been sued for the neglect of his deputy in not collecting an execution. The deputy had due notice of the commencement of the action against the sheriff, but the defendant Smith, the surety for the deputy, had no notice. The Superior court of Hew York held the surety liable. Th^ court of appeals affirmed the judgment, on the ground that it fell within the class of cases in which the indemnitor is concluded by the result of a suit against the person whom he has undertaken to indemnify, and that such was the fair interpretation of the contract. The case in the court of appeals is not reported, but the ground of the decision is stated in the opinion of the court in Thomas v. Hubbell, (15 N. Y. Rep. 405.) Bartlett v. Campbell, (1 Wend. 50,) can not be distinguished in principle from the case at bar. (See also Duffield v. Scott, 3 T. R. 374.)

The appellant relies upon the case of Thomas v. Hubbell, supra, to show that in order to have the judgment against the sheriff conclusive upon the sureties of the deputy, notice must he given to them in time, to defend the action against the sheriff. That was an action upon the official bond of a deputy sheriff, executed with sureties, to the sheriff, conditioned that the deputy should “well and faithfully in all things perform and execute the duties of deputy sheriff, without fraud, deceit or oppression.” A judgment was recovered against the sheriff for the alleged misconduct of the deputy, in a suit of which the deputy had notice, with a request to defend, but the sureties had no notice. The court held that the sureties were at liberty to prove facts which would have established a good defense in the action against the sheriff; and that there was no reason why that case, in which the language of the condition admitted of no such construction as was given to the condition of the bond in the case cited from 2d Duer, should be taken out of the general rule, which declares the effect of judgments, as to strangers, that they conclusively prove rem ipsam, and nothing more. The case is, therefore, not an authority in favor of the appellant, but on the contrary, sustains the proposition that the present belongs to the class of cases which forms an exception to the general rule as to the effect of a judgment, upon persons not parties to the record.

[Monroe General Term, December 7, 1863.

If or the foregoing reasons, I am of the opinion that the judgment should be affirmed.

Ordered accordingly.

Johnson, B. Darwin Smith and IFellcs, Justices.]