Poster v. National Surety Co.

Appellate Division of the Supreme Court of New York

Poster v. National Surety Co.

234 A.D. 883

CourtAppellate Division of the Supreme Court of the State of New York

DecidedDecember 15, 1931

StatusPublished

This text of 234 A.D. 883 (Poster v. National Surety Co.) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Poster v. National Surety Co., 234 A.D. 883 (N.Y. Ct. App. 1931).

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Opinion

Judgment reversed upon the law, with costs to appellant, and complaint dismissed, with costs. We are of opinion that there is nothing uncertain or ambiguous about the undertaking in question. According to its terms, if the principal mentioned in the undertaking fails to pay the deficiency judgment, the surety company is bound to pay it to the extent of its agreement, namely, $15,000. The first paragraph of the undertaking is not a recital. It is an agreement for a specified lian bility, limited to the amount thereof. (Civ. Prae. Act, § 160.) Lazansky, P. J., Young and Kapper, JJ., concur; Hagarty and Tompkins, JJ., dissent and vote to affirm on the ground that the condition of the undertaking is to pay the “ deficiency judgment ” and that that condition is controlling over the preceding recital, and that it was the intention of the parties that the undertaking should cover any deficiency judgment. Findings of fact inconsistent herewith and the conclusion of law are reversed and new findings and a new conclusion will be made. Settle order on notice.

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Judgment reversed upon the law, with costs to appellant, and complaint dismissed, with costs. We are of opinion that there is nothing uncertain or ambiguous about the undertaking in question. According to its terms, if the principal mentioned in the undertaking fails to pay the deficiency judgment, the surety company is bound to pay it to the extent of its agreement, namely, $15,000. The first paragraph of the undertaking is not a recital. It is an agreement for a specified lian bility, limited to the amount thereof. (Civ. Prae. Act, § 160.) Lazansky, P. J., Young and Kapper, JJ., concur; Hagarty and Tompkins, JJ., dissent and vote to affirm on the ground that the condition of the undertaking is to pay the “ deficiency judgment ” and that that condition is controlling over the preceding recital, and that it was the intention of the parties that the undertaking should cover any deficiency judgment. Findings of fact inconsistent herewith and the conclusion of law are reversed and new findings and a new conclusion will be made. Settle order on notice.

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Bluebook (online)

234 A.D. 883, Counsel Stack Legal Research, https://law.counselstack.com/opinion/poster-v-national-surety-co-nyappdiv-1931.