
    Guiseppe Miano, Appellant, v. Empire State Surety Company, Respondent, Impleaded with The City of New York, Defendant.
    Second Department,
    November 22, 1912.
    Guaranty and surety—judgment against principal; when notevideh.ee in action against surety.
    Where a surety company bound itself to pay to the city of New York any loss, damage or injury resulting to persons or property from- the use or keeping of explosives, payment to be for the benefit of all persons suffering damage or loss thereby, a judgment against the principal in the bond awarding damages to his servant, injured by a discharge of a blast, is not evidence in an action against the surety of the latter’s liability for a breach of the conditions of the bond.
    Appeal by the plaintiff, Guiseppe Miaño, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Kings on the 12th day of July, 1912, upon the decision of the court, rendered after a trial at the Kings County Trial Term, a jury having been waived.
    
      Louis Diamant and Isaac Siegel, for the appellant.
    
      Benjamin Beass, for the respondent.
   Thomas, J,:

The question is whether a judgment against the principal in a bond is sufficient evidence against the surety of its liability for breach of conditions that can be asserted only by a third person. . The bond was given by one Labriola as principal and the Empire State Surety Company as surety on the condition that they “ shall "x" * "x" pay to the said City of New York, * "x" "x" any loss, damage or injury resulting to persons or property from the use or keeping of such explosives; and for the strict observance -of an ordinance, and the regulations made thereunder, to regulate the sale, use and transportation of explosives in the City of New York, passed * * * on May 19th, 1902, under and by virtue of such permit as aforesaid, such payment to be for the benefit of any and tall persons suffering damage or loss thereby.” The plaintiff, Labriola’s servant, was injured by a discharge of a blast, and recovered, damages in an action wherein he charged his master .with negligence in divers ways. It will be observed that the complaint in the action against Labriola is not limited to acts or omissions that would make a breach of some condition in the bond, but also charges negligence on the part of the defendant and his superintendent in violation of the duty of the master to the servant. It does not appear upon what issue or issues the judgment rests. If it be on the breach of a duty of the master to his servant, the matter may be quite unrelated to the issues in the action at bar. But if it be assumed that the judgment is for a violation of the provisions of the bond and that the surety company has such lawful notice of the action that it could have interposed and defended, even then the judgment is not evidence in the present action. Labriola and the surety company promised through the city of New York that it would pay directly to the plaintiff damages caused him from the use Or keeping of explosives by Labriola. (Obendorfer v. City of New York, 130 App. Div. 877; affd., 198 N. Y. 583.) The bond is for the benefit of the city and those whom it would protect, and'not for the indemnification of Labriola by the surety company. Hence the obligors are one and both directly liable to the person injured, and recovery against the principal is not a condition precedent to recovery against the surety. Labriola is the offender, and as between him and the surety is primarily liable to the plaintiff, but both owe the plaintiff the duty of paying his damages. In that case the surety is entitled to its day in court, not through opportunity to interpose in an action against its co-obligee, involving as it happened issues irrelevant to those on which its liability could be predicated. For this authority is found in Berry v. Schaad (50 App. Div. 132); Loewer’s Gambrinus Brewery Co. v. Lithauer (43 Misc. Rep.

683). But it is urged that as the surety had notice and opportunity to defend the action against the principal, it is estopped by the judgment against him. This would be the case if the surety company were bound to indemnify Labriola. But the relation is reversed, for Labriola would be bound to indemnify the surety. If one person binds himself to save another harmless, the latter’s adjudged obligation measures the latter’s liability, or if the wrong of one subject another without his immediate fault to the payment of damages, the result is the same. But in such case the person ultimately liable must have notice and opportunity to contest the liability and damages, or the judgment will be inter alios. Such feature of indemnification of the principal, or ultimate obligation to pay the damages, is present in all the cases on which appellant relies, of which Village of Port Jervis v. First National Bank (96 N. Y. 550) and Oceanic S. N. Co. v. Compania Transantlantica Espanola (134 id. 461) are types.

The judgment should be affirmed, with costs.

Present—Jenks, P. J., Hirschberg, Thomas, Carr and Bich, JJ.

Judgment unanimously affirmed, with costs.  