
    The City of New York, Respondent, v. National Surety Company, Appellant.
    
      Pleading — when separate defense properly stricken from answer — undertaking — action to recover on bond.
    
    
      City of New York v. National Surety Co., 206 App. Div. 685, affirmed.
    (Argued October 4, 1923;
    decided October 23, 1923.)
    Appeal, by permission,- from an order of the Appellate Division of'the Supreme Court in the first judicial department, entered May 18, 1923. which affirmed an order of Special Term granting a motion to strike out the defense consisting of new matter contained in the answer. The action was to recover upon an undertaking on appeal. The separate defense alleged that because of certain injunction proceedings and appeals the right of the surety to pay the judgment and seek immediate reimbursement from the debtor was cut off for four years, and the risk of the surety was converted from a risk that the debtor would become insolvent within two years to a risk that the debtor would become insolvent in six years, and that the city’s failure to take an appeal from an order granting a motion to cancel another surety’s bond, pending an appeal, or to notify the first surety of the proceedings of the second surety in its endeavor to be judicially released from its undertaking, prevented the first surety exercising a right to call upon the second surety for reimbursement by sub-rogation after the first surety paid the city’s judgment.
    The following question was certified: “ Is the defense consisting of new matter contained in the answer herein sufficient in law upon the face thereof ? ”
    
      George Welwood Murray, Harrison Tweed and Otey McClellan for appellant.
    
      George P. Nicholson, Corporation Counsel (John F. O’Brien, Henry J. Shields, Isaac F. Cohen and John J. Haggerty of counsel), for respondent.
   Order affirmed, with costs; question certified answered in the negative; no opinion.

Concur: Hiscock, Ch. J., Hogan, Cardozo, Pound, McLaughlin, Crane and Andrews, JJ.  