
    James G. Conner et al., Ex’rs of William C. Conner, Resp’ts, v. William Reeves et al., Imp’d, App’lts.
    
    
      (Court of Appeals,
    
    
      Filed November 23, 1886.)
    
    Bond—Covenant of indemnity against judgments, etc.—What constitutes breach —■ Judgment against covenantee conclusive, against covenantor in absence of fraud or collusion.
    The defendants' undertook to well and truly save, keep, and bear harmless and indemnify the plaintiff’s testator “of and from all harm, let, trouble, damage, liability, costs, counsel fees, expenses, suits, actions, judgments that may at any time arise,- come, accrue, or happen to be-brought against him for or by reason of the levying, attaching and making sale” under and by virtue of an execution issued to him as sheriff in a. certain action. Held, that the undertaking was not against damage but against liability by judgment as well. That in the absence of fraud or collusion between the parties, the covenantor in an action on a covenant of general indemnity against judgments is concluded by the judgment recovered against the covenantee, from questioning the existence or extent of the covenantee’s liability, in the action in which it was rendered.
    Appeal from a judgment of the supreme court general, term, first department, entered upon an order which affirmed a judgment entered on a verdict directed by the-court, and affirming an order denying a motion for a new trial.
    
      Edward D. McCarthy, for app’lts; Henry Thompson with Vanderpoel, Green & Cuming, for resp’ts.
    
      
       Affirming 35 Hun, 507.
    
   Andrews, J.

The obligors undertook to well and truly save, keep, and bear harmless and indemnify the plaintiff’s; testator, William C. Conner, “of and from all harm, let, trouble, damage, liability, costs, counsel fees, expenses, suits, actions, judgments, that may a,t any time arise, come, accrue, or happen to be brought against him, for or by reason of the levying, attaching, and making sale ” under and. by virtue of an execution issued to him as sheriff, on a judgment in favor of the defendant Dubee against one Fischer, of personal property claimed by third persons. The undertaking was not against damage merely, but was an indemnity against liability by judgment as well. Rockfeller v. Donnelly, 8 Cow., 628; Chace v. Hinman, 8 Wend., 452. By the general rule of law, a covenant to indemnify against a future judgment, charge, or liability is broken by the recovery of a judgment, or the fixing of a charge or liability, in the matter to which the covenant relates. When the covenant is one of indemnity against the recovery of a judgment, the cause of action on the covenant is complete the moment the judgment is recovered, and an action for damages may be immediately maintained thereon, measured by the amount of the judgment, and this although the judgment has not been paid by the covenantee, and although the covenantor was not a party or had no notice of the former action. The covenantor in an action on a covenant of general indemnity against judgments is concluded, by the judgment recovered against the covenantee, from questioning the existence or extent of the covenantee’s liability in the action in which it was rendered. The recovery of a judgment is an event against which he covenanted, and it would contravene the manifest intention and purpose of the indemnity to make the right of the covenantee, to maintain an action on the covenant, to depend upon the result of the retrial of an issue, which, as against the covenantee, had been conclusively determined in the former action; 1 ‘always, however, saving the right, as the law must in every case where the suit is between third persons, to contest the proceeding on the ground of fraudulent collusion for the purpose of charging the surety.” Cowen, J., in Douglass v. Howland, 24 Wend., 55. The general doctrine above stated is fully settled by authority. Chace v. Hinman, supra; Gilbert v. Wiman, 1 N. Y., 550; Methodist Churches v. Barker, 18 id., 463; Rapelye v. Prince, 4 Hill, 120; Insurance Co. v. Wilson, 34 N. Y., 280; Douglass v. Howland, supra.

This case, however, presents a feature which, so far as I know, is not found in any of our reports. The judgment in the action of Kahrs against the sheriff was entered by consent. The action, after issue had been joined, was put on the calendar, where it remained for several months. Dubee, one of the obligors on the indemnity bond, and the plaintiff in the execution against Fischer, was notified of the action, and was consulted by the sheriff in respect to the litigation. It was found that there was difficulty in procuring witnesses to establish the defense, and it was finally agreed between Kahrs, the sheriff, and Dubee that judgment should be taken in the action in favor of Kahrs for §500; and pursuant to'this agreement, and by the consent of the parties thereto in open court, judgment was entered. The question is whether a judgment, obtained under these circumstances, established a breach of the contract of indemnity, and justified the court in directing a verdict for the plaintiff.

The defendants neither proved, nor offered to prove, that there was any defense in fact to the action of Kahrs, or that the judgment exceeded the sum which Kahrs was entitled to recover against the sheriff, or that the agreement for the adjustment of the amount, or the consent to the entry of the judgment, was fraudulent or collusive. The appellants must fail on this appeal, unless they can maintain the proposition that the judgment against the sheriff furnished neither conclusive nor presumptive evidence of a breach of the condition of the bond; or, in other words, that a judgment rendered by consent was not a judgment or adjudication, within the meaning of the bond. The question is not free from difficulty, but we are of opinion that the judgment, in the absence of any evidence of fraud or collusion, or any suggestion that there was a defense to the action against the sheriff, although entered upon consent of the parties to the action, presumptively, at least, established the liability of the defendants. The defendants executed the bond at the request, and for the accommodation, of Dubee. Its obvious purpose was to secure the sheriff against apprehended litigation as to the title to the property seized under the execution against Fischer. The bond was given to indemnify the sheriff against suits and judgments to which he should be a party, growing out of that proceeding. The appellants did not make it a condition of their liability that they should have notice. They were satisfied that the sheriff should conduct litigations founded upon his seizure of the property, without reserving any right of intervention. They committed the matter to his discretion, not, indeed, by express words, but by necessary implication. It is true that the sheriff was not, in a legal sense, the agent of the sureties to manage suits brought against him; but the sureties agreed that no judgments should be recovered against him therein. They did not Emit the indemnity to- judgments .obtained upon an actual trial, or after a contest in court, and they did not undertake to divest the sheriff of the power incident to his position as a party to settle and adjust .litigations instituted against him, in view of the exigencies of the situation. It might very weE happen that a judgment founded upon a compromise or agreement, without actual trial, would best promote the interest of all concerned.

Can it be affirmed, as a matter of law, that the conditions of the bond only covered judgments obtained upon hostile and adverse litigation, and that no discretion was left in the sheriff to consent to a judgment, although he believed that by so doing money would be saved to the parties ultimately liable? This, we think, would be a too strict interpretation of the contract. But, at the same time, to hold that a judgment entered by consent of the parties, and without notice to or approval by the sureties, is, in the absence of proof of fraud or collusion, conclusive against them, would open the door to the perpetration of secret frauds, and subject sureties to a most hazardous responsibility, and to the discretion and judgment of a third person, which might seriously imperil them. A judgment by default has been held to be covered by an indemnity against judgments, Lee v. Clark, (1 Hill, 56), Aberdeen v. Blackmar, (6 Hill, 324), Annett v. Terry (35 N. Y., 256), but, where default is made, the plaintiff must give proof to entitle him to judgment.

While we are of opinion that the sheriff was not excluded from the protection of the indemnity by reason of the fact that the judgment was taken by his consent, we think the reasonable rule is that a judgment so obtained is presumptive evidence only "against the sureties, and that they are at liberty to show that it was not founded upon any legal liability to the plaintiff in the action. We are not aware that this point has been adjudicated in our court, but this conclusion is warranted, we think, by legal and equitable considerations. In this case there is an absence of any proof impeaching the fairness or justice of the claim of Kahrs, or tending to show that the judgment exceeded the legal liability of the sheriff.

The judgment should, therefore, be affirmed.

All concur, except Ritger, Oh, J., not voting.  