
    Louis H. Stutson and S. David Stutson, Individually and as Assignee of Joseph B. Stutson, Respondents, v. New Amsterdam Casualty Company, Appellant.
    Supreme Court, Appellate Term. First Department,
    February 10, 1939
    
      William Lurie [David S. Konheim of counsel], for the appellant.
    
      David Greenstein, for the respondents.
   Per Curiam.

The finding of the Virginia court that Louis H. Stutson was a fraudulent assignee may be availed of as a defense by the defendant. A recovery against the principal in an action to which the surety is not a party is not conclusive upon the surety where the covenant is one of general indemnity merely against claims or suits. It was error, therefore, to strike out the first and second defenses. (Adams v. United States Fidelity & Guaranty Co., 239 App. Div. 525; affd., 264 N. Y. 550; Sears, Roebuck & Co. v. 9th Avenue-31st St. Corp., 274 id. 388.)

Order modified by reinstating the first and second defenses, and as modified affirmed, without costs.

All concur. Present — Hammer, Shientag and Noonan, JJ.  