Safe Deposit & Trust Co. v. Cassella ( 1924 )

Opinion by

Henderson, j.,

The earnest argument of the learned counsel for the appellant has not convinced us that the court was in error in opening the judgment. The bond and mortgage were given to Uber as trustee from which it appears that whatever liability they created was not for money due to him personally, and there is evidence supporting the allegation of the defendant that they were given at the request of Uber to indemnify him as guardian, or surety on a bond and not for money due him as trustee. The settlement between the defendant and Uber when the latter satisfied the mortgage supports the defendant’s assertion that the bond was not a money obligation. As it appears that notice was not given to the defendant of the assignment of the securities the subsequent settlement between her and the obligee is relevant evidence. Without entering into a discussion of the merits of the case, we think it sufficient to say that the evidence raises a question of fact properly referable to a jury.

The judgment is affirmed at the cost of the appellant.