
    Edward P. Mossein, as President of Local Union No. 471 of the United Brotherhood of Carpenters and Joiners of America, Respondent, v. The Empire State Surety Company, Appellant.
    Second Department,
    March 1, 1907.
    Principal and surety— undertaking that principal deposit moneys — liability of surety,— interest — practice — amendment conditioned on cause retaining- place on the calendar — when notice of- trial not necessary.
    •One J. secured a judgment against M- as president of an association. In proceedings supplementary to execution the judgment creditor had discovered moneys which had been applied upon the execution. A motion by M. to set aside the judgment was denied, and thereafter M. was allowed to. perfect his appeal from such denial and the order required J. to make restitution of the sum obtained in supplementary proceedings by depositing it in a bank to the credit of M.’s association. Before the trial J. gave an undertaking (on which the present defendant was surety), providing that if the order of restitution were affirmed J. would pay the sum directed by the judgment. In an action ' against the surety based upon the fact that restitution had never been made, Held, that the defendant guaranteed that the restitution should be made by a deposit of the sum in a bank to the credit of M.’s association, which was all that could be required in the present action;
    That the principal of the surety in the suit was entitled to a strict construction of the undertaking and to the redeposit of the money;
    That as the surety had only undertaken that J. should deposit the money, M. was not entitled to a judgment that the sum be paid to him outright as president of the association;
    That the court had power to require said restitution;
    That interest is properly charged against the surety from the time its liability became determined; .
    That when a surety defends a suit brought to compel the fulfillment of its ■. undertaking it is chargeable with costs.
    The Special Term in allowing an amendment to a complaint may.require that - .the amendment be without prejudice to the position of the cause on the trial calendar and a subsequent notice of trial need not be served by the plaintiff.
    Appeal "by the defendant, The Empire State Surety Company, from a judgment, of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of' Kings on the 9th day of March, 1906 upon the verdict of a jury rendered by direction of the court, and also (as stated in the notice of appeal) from an order entered in said clerk’s office on the 20th day of February, 1906, denying the defendant’s motion to strike the case from the calendar.
    
      F. J. Moissen, for the appellant.
    
      William F. Hagarty [James T. O'Neill with him on the brief], for the respondent.
   Jenks, J.:

The suit was begun against Manning, this plaintiff’s predecessor; but to avoid confusion I shall speak of Manning as Mossein.

I think that this judgment is erroneous. The defendant was a surety. Johnson secured a judgment in a Municipal Court against Mossein, as president, etc., by default. - After a deal of practice between the parties the Special Term made an order of correction so that Mossein perfected his appeal from an order denying his motion to set aside that judgment. That order also required Johnson or her attorney in that case to make restitution of the sum of $296.17 by depositing it in a bank to the credit of Mossein’s association within five days. This sum had been applied on the judgment in proceedings supplementary to execution. We affirmed that order with modifications. (See Johnson v. Manning, No. 1, 75 App. Div. 285.) The provision for restitution, however, was not affected. Before that appeal Johnson gave an undertaking, which reads as follows: “ Whereas, on the 3rd day of April, 1902, in the Supreme Court, at a Special Term thereof, the above-named John J. Manning, as president, &c., defendant and respondent, obtained an order against the above-named Christina Johnson, plaintiff and appellant, directing the plaintiff herein and her attorney, George Gru, to make restitution of the sum of two hundred and ninety-six 17/100 ($296.17) dollars to the defendant herein by depositing the said $296.17 with the Germania Savings Bank to the credit of said defendant association. And the appellant feeling aggrieved thereby intends to appeal therefrom to the Appellate Division of the Supreme Court, Second Department. Mow, therefore, the Empire State Surety Company, having an office and place of business at Mo. 375 Fulton. Street, in the Borough of Brooklyn, City of Mew York, does hereby, pursuant to the statute in such case -made and provided, undertake that the appellant will pay all costs and damages which may be awarded against the appellant on said _ appeal, not exceeding five hundred dollars, and does also undertake that if the. judgment or order so appealed from, or any part thereof, is affirmed, or the appeal is dismissed^ the appellant will pay the sum recovered or directed to be paid by the judgment, or order or the part thereof as to which said judgment or order shall be affirmed.” This action is based upon the fact, that the restitution ■ was never made: It is quite clear that the sole purpose of 'the order for restitution was to restore the deposit in the event that Mossein might Ultimately relieve himself from the judgment obtained upon default either by. setting aside the service of the summons and complaint or by opening the default.

The. power to make the order requiring such restitution was challenged on this trial, but we 'have already affirmed it.- I think that our affirmance was right.. In Granger v. Craig (85 N. Y. 619) it is. said: “ The Code, however, doesmot abridge, the power that the Supreme Court has always had over its own judgments, to correct' mistakes in 'them, to vacate them for irregularity, to stay proceedings on them for such time and on such terms as to the court seem proper.” (See, too, Genet v. President, etc., D. & H. C. Co., 113 N. Y. 472, 474; Code Civ. Proc. § 217.) In Graham’s Practice (2d ed. p. 367) it- is said: “So also, where a writ of error is brought, and bail in error put in within four days after judgment, if the execution have been levied, the court will, direct restitution of the amount collected, or of premises of which the party has been turned out of possession, under it. (7 Cowen, 417; 1 Wendell, 81; 5 Wendell, 288) ” In Bank v. Elliott (60 Kans. 172) it was contended that an order of restitution made in the action was Unauthorized as not positively afforded by the Code. . The court said (p. 175): “There is no- difficulty there; the motion and order were only steps in a pending action. The parties being before the court, and the matter of restoration being incidental to the action, there can be no question of the power or duty of the court to enforce restoration in that proceeding. Instead of multiplying cases, it is the policy of our Code that the rights of the parties be determined as far as practicable in a single litigation, and we think the court was warranted in enforcing restitution in 3 summary manner upon the motion of the defendant.”

But the defendant’s liability “ is limited to the express terms oi the contract, and his obligation should be construed strictly and favorably to the surety so far as is warranted by the terms employed.” (Ward v. Stahl, 81 N. Y. 408.) That contract is that restitution will be made by depositing the sum with the Germania Bank to the credit of the said defendant association, and this is all that should be required of the defendant with respect to that sum.

It may be entirely true that as to third parties it is immaterial whether a person receive money or whether it be redeposited to his credit, and that there is no Complication in this case which makes one disposition or the other of consequence to the surety so.long as it is protected by a judgment. But Johnson, the principal of the defendant, as the plaintiff in the action which proceeded to judgment in her favor, is entitled to the strict construction of the undertaking to the end that there should be a redeposit of the money. She docketed her judgment and issued execution thereon to the sheriff. Upon return of execution unsatisfied proceedings supplementary were taken which revealed this deposit, and it was applied on the judgment. We modified the order which denied a motion made to set aside the judgment and subsequent proceedings taken pursuant thereto by staying all proceedings in enforcement of the judgment so docketed until the hearing and disposition of proceedings which Mossein might be advised to take and promptly 'might take toward relief from said default. (Johnson v. Manning, No. 1, 75 App. Div. 285.) We did not set aside the proceedings, but held them in abeyance, and it may well be. that Johnson had proceeded so far and so well as to sequester that sum, subject to her. right of specific appropriation to her judgment in the event that she finally held that judgment. The plaintiff read in evidence the transcript of the judgment which'Johnson had recovered, and it appears by the uncontradicted evidence of the defendant that such judgment had never been reversed or set aside. It is obvious, then, that Johnson being only required to redeposit the money, and the surety having only undertaken that this should be done, Mossein should not have judgment upon that undertaking that the sum should be paid to him as president outright if by any possibility ■ such a variance might .prejudice Johnson. Moreover, it appears that Johnson could not enforce her judgment by execution, but was put to proceedings supplementary, whereupon this deposit was revealed. If, then, instead of redeposit, there is direct payment, the judgment creditor has no assurance in fact that she may collect her judgment. I think, however, that the error in the judgment may be corrected here. (Outwater v. Moore, 124 N. Y. 66; Baylies N. T. & App. [2d ed.] 414, and authorities cited.) The interest is properly chargeable against the defendant from the time its • liability became determined. (Poillon v. Volkenning, 11 Hun, 385.) And inasmuch as the defendant defended the suit brought to compel the fulfillment of its undertaking, it is chargeable with the costs thereof. (Kip v. Brigham, 7 Johns. 168.) The plaintiff was entitled to enforce his right to the restitution by action if he saw fit. (Haebler v. Myers, 132 N. Y. 363 ; 18 Ency. of Pl. & Pr. 888 and note, 895 and notes; Doe v. Crocker, 2 Ind. 575.)

As to the point made that the case was not properly moved for trial in that no notice had been served by the plaintiff and the case, therefore, was not properly upon the calendar, it appears that the ■ Special Term in allowing the amendment to. the complaint provided : “ Service of said amended complaint shall be. without prejudice to the position of the case on this General Trial Term calendar of this court, and that the said case retain its said place upon said calendar.” This provision was within the power of the court. (Myers v. Metropolitan Elevated R. Co., 16 Daly, 410, 413, citing cases.) The court denied the application that the case be not tried on the ground that “ Hnder the rules of the court all applications for postponement are made in Part I and cases are sent from Part I to the various trial parts for disposition. ' I deny this application to ad journ on the ground that all such applications must be made in Part I,' and the case being sent here I must assuine that the court in Part I has passed upon this application and denied it.” I think that the learned court was correct. (General Rules Pr., rule 83 ; Calendar Buies of Trial Term, Kings Co.) In any event the appellant has not pursued the correct practice to raise the question. (Martin v. Hicks, 6 Hun, 74.)

The judgment must be modified as indicated, and as modified affirmed, without costs.

Hooker, Bioh and Miller, JJ., concurred.

Judgment and order modified as indicated in the opinion of Jenks, J., and as thus modified affirmed, without costs. Order to be settled before Jenks, J. 
      
      
        Jackson v. Sahauber.
      
     
      
      
        People v. Judges of New York Common Pleas.
      
     
      
      
         Mitchell v. Thorp.— [Rep.
     