Nelson v. Moloney

This was a suit brought by Dennis Moloney against Samuel Nelson, Albert J. Adams, and others in the supreme court of New York, city and county of New York, to foreclose a mortgage on real estate given Moloney by Nelson to secure a bond for $10,000, in indemniflcation of Moloney against loss by reason of becoming bail for one O'Brien. The judge before whom the case was tried found the facts as follows:

'I do find that in the month of October, 1891, one Thomas O'Brien was under arrest and confined in Albany county jail, charged with the crime of grand larceny in the first degree, and that on the 16th day of October, 1891, he was discharged from custody on giving a certain bail bond or recognizance in the sum of ten thousand dollars executed by himself, the defendant Samuel Nelson, and the plaintiff, Dennis Moloney, conditioned that the said Thomas O'Brien should appear and answer the said charge, in whatever court it may be prosecuted.

'That the defendant Samuel Nelson, in order to induce the plaintiff to enter into said recognizance, agreed to indemnify him against liability thereunder, and the plaintiff, relying upon said agreement and not otherwise, entered into and executed the same as aforesaid, and the said defendant Samuel Nelson immediately thereafter, and in fulfillment of said agreement, did execute and deliver to the plaintiff, Dennis Moloney, the bond and mortgage set up in the complaint in this action, which said mortgage was thereafter, and on the 17th day of October, 1891, duly recorded in the office of the register of the city and county of New York.

'That thereafter, and on the 2d day of November, 1891, the said Thomas O'Brien was called upon in the county court of Albany county to appear and answer the indictment above referred to, but did not a pear, and the bail bond or recognizance executed by said O'Brien, the plaintiff, Dennis Moloney, and the defendant Samuel Nelson, was, on said 2d day of November, 1891, declared forfeited.

'That thereafter, and before the commencement of this action, an action was brought by the people of the state of New York against the plaintiff, Dennis Moloney, and the defendant Samuel Nelson, to recover upon said forfeited bail bond or recognizance, and on the 8th day of December, 1891, judgment in said action was duly entered in favor of the people of the state of New York against the defendant Samuel Nelson, and the plaintiff, Dennis Moloney, for the sum of ten thousand and twenty-seven 13/100 ($10,027.13) dollars, and the judgment roll duly filed in the office of the clerk of Albany county on said date.

'That thereafter executions upon said last-mentioned judgment were duly issued to the sheriff of Albany county, and the plaintiff's property was sold under said execution, and the entire amount of said judgment paid wholly by the plaintiff.

'That no part of the sum of ten thousand dollars secured by said bond and mortgage has been paid to the plaintiff, and defendants agreed and consented on the trial of this action that interest upon said sum of ten thousand dollars should be computed from the 5th day of June, 1893.'

Page 166-continued.

And thereupon judgment of foreclosure and sale for the amount due, and for payment of any deficiency, was entered.

Before this suit was commenced Moloney had brought a similar suit against Nelson, and recovered judgment, which was reversed by the general term of the supreme court on the ground that it had been prematurely brought, because Moloney had not then paid anything on account of the judgment entered on the forfeiture of the criminal recognizance. 70 Hun, 202, 24 N. Y. Supp. 147. From that judgment Moloney prosecuted an appeal to the court of appeals, entering into the usual stipulation that, if the judgment appealed from was affirmed, judgment absolute might be rendered against him. The judgment was affirmed, and judgment absolute entered. 144 N. Y. 182, 39 N. E. 82. After that this action was commenced, but in the meantime Nelson had transferred the property mortgaged to defendant Adams.

From the judgment of the trial court (39 N. Y. Supp. 930) in this suit Nelson alone appealed to the appellate division of the supreme court in the First department, by which it was affirmed (42 N. Y. Supp. 418). Nelson then carried the cause to the court of appeals, and the judgment of affirmance was affirmed. 158 N. Y. 351, 53 N. E. 31. The record having been remitted to the supreme court, this writ of error was allowed, and motions to dismiss or affirm submitted.

Abram J. Rose, for defendant in error.

Wm. H. Newman, for plaintiff in error.

Mr. Chief Justice FULLER, after stating the facts in the foregoing language, delivered the opinion of the court.