Sweeney v. Metropolitan Surety Co.

129 A.D. 22, 113 N.Y.S. 126, 1908 N.Y. App. Div. LEXIS 1235

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 27, 1908
• Status: Published

Opinion

Gaynor, J.:

The defendant gave its bond to the plaintiff as surety with Can-let as principal to pay $1,000 to the plaintiff; the condition of the bond being “ that if the said principal shall pay any judgment which may be recovered against him in the above entitled action ” (in which this plaintiff was the plaintiff), “ then this obligation to be void”. The complaint alleges the recovery of a judgment, but contains no allegation that it is unpaid. This case is no exception to •the general rule that payment has to be pleaded as a defence. That the condition of the bond depends on payment by one other than this defendant does not make a difference. The bond is not to be construed, as the appellant contends, as an obligation in form to pay the judgment if the defendant therein does not, in which an allegation of non-payment might be necessary to the complaint. It is an absolute undertaking to pay, followed by a condition that it shall be void upon payment, which is the usual form.

The judgment should be affirmed.

Woodward, Hooker, Rich and Miller, JJ., concurred.

Interlocutory judgment affirmed, with costs.