Eberle v. Bryant

31 Misc. 814, 63 N.Y.S. 963

• Court: City of New York Municipal Court
• Decided: April 15, 1900
• Status: Published

Opinion

O’Dwyer, J.

John H. Schilling, as guardian of the plaintiff, received $500 in 1885. .This money he lost in business. On September 26, 1895, Schilling made a judicial settlement, showing that he owed plaintiff $752. Execution ivas issued to the sheriff of New York county and was returned unsatisfied. The defendants James S. Bryant and Charles Van Riper were sureties on Schilling’s guardian bond. Upon the return of execution unsatisfied, this action was commenced. Shortly after the commencement of this action, and before he was served with the summons, Schilling died. Schilling was named in the summons as a defendant, but he was not served. In their answer Bryant and Van Riper admitted that they were bondsmen. They set up the affirmative defense that the judicial settlement was fraudulent and made without notice to them. The basis of this claim is that, while Schilling lost the original $560, it was afterwards restored to the estate by the deposit of $2,450 in the American Loan & Trust Company in the names of John H. Schilling, James S. Bryant and Charles Van Riper, and that the bondsmen are not liable for the money lost by the failure of that company. Upon the interposition of this defense, another child (Mrs. Otto) commenced an action in the Supreme Court, which was tried at Special Term, and judgment recovered, holding the defendants liable upon this state of facts. From that decision defendants there (the same defendants here) appealed, and the Appellate Division affirmed the decision. The bond was joint and several and enforceable against any one or all of the signers. Code Civ. Pro., § 454. While Schilling was named in the summons, the plaintiff had a right to proceed to judgment against the other defendants without service of summons upon «him. Code Civ. Pro., §§ 456, 759. The proceeding for the accounting was a compulsory proceeding, and the bondsmen were not necessary parties thereto; the sureties, however, came in and were made parties to the accounting. By the order of December 19, 1895, allowing them to come in, the surrogate ordered “ but that said decree entered on the 26th day of December, 1895, stand as entered, unless modified or vacated upon the proceedings under this order.” As the bondsmen came into that proceeding and were restricted to that proceeding in their efforts to have it set aside, they cannot come here and ask this court to retry the issues that they were required to try in that proceeding. The sureties cannot collaterally attack the decree. Casoni v. Jerome, 58 N. Y. 315. The plaintiff had shown a judicial accounting entitling her to recover of the defendants. To show why or how the accounting was made or the reasons or circumstances of making the deposit in the trust company, or what became of the fund, is no answer to the surrogate’s decree. That decree is conclusive of defendants’ liability. It cannot be impeached or its binding force ignored by this court. As Otto v. Van Riper, 31 App. Div. 278, was decided adversely to these defendants upon identically the same facts, it is plain they could not get the surrogate’s decree modified.

The rejection of oral evidence as to the form of deposit was proper. Defendants had put the bank-book in evidence, but it is not included in the record. The question as to whom the deposit belonged was improper. The deposit-book showed who was the owner of the fund, and oral testimony was incompetent. In the Otto case the ownership of the fund was the vital point litigated.

The exceptions to the admission of Exhibits O and D cannot be considered. They are not included in the record.

We have examined the other exceptions, and agree with the learned trial judge that the evidence offered was clearly immaterial and irrelevant.

Judgment appealed from affirmed, with costs.

Hascall, J., concurs.

Judgment affirmed, with costs.