
    (70 Hun, 202.)
    MALONEY v. NELSON et al.
    (Supreme Court, General Term, First Department.
    June 30, 1893.)
    Foreclosure of Mortgage—Indemnifying Surety on Bail Bond.
    A surety on a bail bond, who takes a mortgage from his cosurety to. secure him against loss by reason of his suretyship, cannot foreclose the mortgage before he has paid anything on account of the bond, though the latter has been forfeited.
    Appeal from special term, New York county.
    Action by Dennis Maloney against Samuel Nelson and-, others to foreclose a mortgage. From a judgment of foreclosure, defendant Nelson appeals.
    Reversed.
    
      Argued before VAN BRUNT, P. J., and FOLLETT and BARRETT, JJ.
    James M. Smith, for appellant.
    Kellogg, Rose & Smith, (A. J. Rose, of counsel,) for respondent.
   VAN BRUNT, P. J.

It appears that prior to the 16th of October, 1891, one Thomas O’Brien had been indicted by the grand jury of Albany county, and on his arrest had been held to bail, to answer such indictment, in the sum of $10,000. Various efforts were made to procure bail for said O’Brien, in which benevolent enterprise the defendant seems to have interested himself; and on the 16th of October, 1891, he went to Albany, and thence to the office of the counsel of O’Brien, and was there told that such counsel would get some one to go on the bond with him, and that it was necessary that the gentleman he was to get to sign the bond should be indemnified in such a way as to guaranty the presence of O’Brien, and in case of default the bond should mature. The defendant at first refused to give such guaranty, but later in the day he appeared; and said it was all right, and for the counsel-to go ahead. Subse-. quently the plaintiff and the defendant became-bail for O’Brien, and he was discharged. After such discharge the parties went to the office of O’Brien’s counsel, and there the bond and mortgage in suit were drawn up by the defendant Nelson, and delivered to the plaintiff. The condition of this bond was that:

“Whereas, the said Maloney has signed as one surety a bond or recognizance, in the penal sum of ten thousand dollars, that Thomas O’Brien shall appear to answer against him in whatever court it may be prosecuted, and shall at all times render himself amenable to the orders and process of the court, and if convicted shall appear for judgment, and render himself in execution thereof, and which bond or recognizance was entered into this day before Hon. Jacob H.-Chite, Albany county judge: Now, therefore, if there shall be no default in the said bond or recognizance so signed by said Maloney, then this obligation to be void; otherwise, to remain in full forcé and virtue.”

When the case of People v. O’Brien was called at the court for trial, O’Brien did not appear, and the bail bond given for his appearance, on which Nelson and Maloney, the parties to this action, were sureties, was forfeited, and this action was commenced. After the commencement of the action a suit was brought on the bail bond, and judgment recovered against Nelson and Maloney, which judgment is yet unpaid; the execution thereon having been returned unsatisfied as to the defendant Nelson, and property of Maloney being under levy and advertisement for sale. Upon these facts the court directed judgment in favor of the plaintiff, and from the judgment entered thereon this appeal is taken.

Various grounds are urged in support of this appeal: That the contract was one to indemnify the plaintiff, and against public policy; that there was no consideration5 for the' obligation; and also that it was error to refuse certain requests. It seems to us that it is not necessary to' consider the question as to whether a contract of indemnity is against public policy in a criminal action or not. It is perfectly apparent that the giving of this bond and mortgage was intended to indemnify Maloney for whatever he should be required to pay by reason of his having become bail for O’Brien. If such was not the contract, then the bond is utterly without consideration, because it is conceded that the plaintiff paid nothing to the time of the execution of the bond. On the contrary, the only person who got any money appears to have been the plaintiff, who got $1,000 for becoming the bail of O’Brien. The plaintiff, therefore, certainly has no right to recover, as he has paid nothing upon his bail bond, has suffered no damage as yet, and there is nothing in respect to which he is to be indemnified. If, as already stated, this bond and mortgage were not given as an indemnity, then they were absolutely without consideration. The result of the decree of foreclosure in this action, as against Nelson, shows at a glance that the plaintiff, in the present condition of affairs, can have no right to recover. Suppose that Maloney receives $10,-000 upon the foreclosure of this property, and never pays any part of the bail bond, is never required to pay any part of the bail bond, and Nelson is required to pay the whole of it. The result would be that Nelson would be paying $20,000 upon an obligation of $10,000, and Maloney would be $10,000 in pocket. The mere statement of this proposition shows that the claim advanced upon the part of the plaintiff cannot be maintained. It is perfectly clear that, at the time of the commencement of this action, Maloney had no claim whatever. His contract of indemnity had not then been violated; and if there was no contract of indemnity he had no claim, even if he had such claim of contract of indemnity existed, and had been violated. It seems to be clear, therefore, that the judgment was erroneous, and must be reversed, with costs to appellant, to abide event. All concur.  