Martin v. Miller

242 A.D. 38, 272 N.Y.S. 914, 1934 N.Y. App. Div. LEXIS 5991

Opinion

Per Curiam.

The surety in enforcing the judgment obtained by the plaintiffs against James O. Sebring should not be allowed to go further than to satisfy the provisions for contribution between the judgment debtors as provided by section 211-a of the Civil Practice Act. The equities as between the judgment debtors must be considered. For this reason the appeal surety of the judgment debtor Miller may collect one-half of the amount of the judgment from the other judgment debtor. (See Kolb v. National Surety Co., 176 N. Y. 233, at p. 238; City of White Plains v. Ellis, 113 Misc. 5; affd., on appeal by the plaintiff, 200 App. Div. 869; 47 Harvard Law Review, article entitled “ Subrogation in Suretyship and Insurance,” 976 at p. 1007.)

All concur. Present — Sears, P. J., Taylor, Thompson, Crosby and Lewis, JJ.

Order reversed on the law, without costs, and motion granted to restrain collection of more than one-half of the judgment from defendant Sebring.