Krause v. Rutherford

81 A.D. 341, 81 N.Y.S. 465

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 15, 1903
• Status: Published

Opinion

Chester, J.:

The defendants insist that the action was prematurely brought, .but we are precluded from examining that question, as it was •decided upon facts substantially identical with those presented here ■on the former appeal. It was there held that it was not (Krause v. Rutherford, 45 App. Div. 132), and that must stand as the law of the case until reversed.

Krause and Geldrich were the only persons arrested under the -order of arrest, and the claim is now made by the appellants that because the undertaking was for the benefit of Geldrich as well as •of Krause it cannot be enforced by Krause alone, for the reason that a recovery by him for the amount of the undertaking would ■leave Geldrich without any remedy upon it. But it does not •appear that Geldrich has any right of action on the undertaking. - -On the contrary, it appears that the order of arrest as to him was not affected by the order vacating it as to Krause, and the appellant’s counsel even offered to show on the trial that Rutherford had recovered a final judgment against Geldrich in the action in which the order of arrest was issued, thus practically conceding that Geld-rich had no cause of action on the undertaking. It thus appears that the only person having a cause of action under it, so far as -shown by the record here, is seeking to enforce it. More than this, the right to enforce the undertaking is by its express terms a several one in the obligees. The undertaking is to pay all damages which the defendants or either of them may sustain by reason of the arrest, if it was finally decided that Rutherford was not entitled to-the order of arrest.

I think, therefore, that the action was properly brought by Krause'alone, and that the judgment should be affirmed, with costs.

Pabkeb, P. J., concurred in result.

Judgment unanimously affirmed, with costs.