
    Sarah A. Tyler, Resp’t, v. Timothy P. Hildreth et al., App’lts.
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed May 8, 1894.)
    
    1. Appeal—Conflicting affidavits.
    A decision by a special term on a disputed question of fact, presented by conflicting affidavits, will not be disturbed.
    2. Same—First instance.
    The objection that a disputed question of fact should not have been decided on affidavits, cannot be raised for the first time on appeal.
    3. Principal and surety—Assignment.
    A surety, upon his offer to pay a judgment against him and his principal, may, on motion, compel its assignment to him.
    
      Appeal from an order granting an application for an assignment of a judgment against principal and surety to surety.
    
      Chas. F. Doyle, for app’lts; Morrison & De Groot (B. F. DeGroot, of counsel), for resp’t.
   Putnam, J.

YL'his is an appeal by the defendant Timothy P. Hildreth and by Robert H. Mott from an order directing the latter, as assignee of the judgment obtained in the above action, to assign it to the defendant Alfred Gr. Peck, or his appointee. The notice of motion was directed to Robert H. Mott. On its return, the defendant Timothy P. Hildreth appeared, and made himself a party to the proceeding.

It is well settled in this state that “ a surety, on the payment of a judgment on which he is liable together with the principal, is entitled to be subrogated.” And he can compel an assignment of the judgment to himself, or to some one named by him. Townsend v. Whitney, 75 N. Y. 425; Twombly v. Cassidy, 82 id. 155. Clearly, respondent in this case was entitled to the order obtained at special term, if the facts were as set out in his moving papers. But the appellant read several affidavits on the hearing of the motion, to the effect that, although respondent on the note in question appeared to be the last indorser, yet it was agreed when the note was made between him and appellant that they should be equally liable thereon,—each liable to pay $500, if the principals of the note failed to pay it. Those affidavits were squarely denied by those read on the part' 'of respondent. Hence a question of fact was presented to the court below on conflicting affidavits, and we cannot properly overrule the decision made thereon by the court. It has been frequently and properly held that the decision on a motion by a special term, on conflicting affidavits, will not be disturbed by the appellate court on a disputed fact involved therein. Henderson v. Jackson, 2 Sweeny, 603 ; Lane v. Town of Hancock, 29 St. Rep. 635; 9 N. Y. Supp. 97.

It is claimed by appellant that the affidavits read on the motion being conflicting, and raising a sharply contested question of fact, the motion should have been denied, and the respondant compelled to seek relief by action. It does not appear that this position was taken at special term.. As far as the papers show, the app'ellant voluntarily submitted the question raised by the affidavits to the decision of that court. It was discretionary with the court below whether to entertain the motion, or to decline to hear it, and compel respondent to resort to an action. ' See Cole v. Malcolm, 66 N. Y. 363. The court below having, in its discretion, entertained and heard the motion on its merits, under the circumstances, we cannot properly hold that it erred in so doing. It has long been a common, and not deemed an improper, procedure for sureties to apply to the court by motion to compel the assignment of securities which they have been compelled to pay. Cole v. Malcolm, supra; Twombly v. Cassidy, supra; Gifford v. Rising, 35 St. Rep. 695; 12 N. Y. Supp. 430; Dundee Nat. Bank v. Wood, 30 St. Rep. 607; 9 N. Y. Supp. 351. Had the papers shown that, in the court below, the appellant, instead of voluntarily submitting his case on its merits, objected to the proceedings, on the ground that the affidavits raised a question of fact which could be determined in an action, we perhaps might have reached á different conclusion.

It is suggested that the respondent was not entitled to the order he obtained until he "had actually paid the judgment. We are of opinion, however, that the papers showing the offer by, and the readiness of defendant Peck to pay the judgment on obtaining an assignment thereof, -it was within the discretion of the court below to make the order from which the appeal is taken. The matter of granting costs was also discretionary. It appears by the recitals in the order that appellants Mott and Hildreth appeared by their counsel, and opposed the application of respondent. Hence it was discretionary with the court whether or not to direct the payment of costs by them.

The order must be affirmed, with costs.

All concur.  