
    William Brownell, Respondent, v. Charles M. Snyder, Appellant.
    Third Department,
    November 13, 1907.
    Conspiracy to hold surety for. amount’of judgment — collusive judgment open to collateral attack—-evidence.
    It is a good defense to an action against the surety on an undertaking given on appeal that the plaintiff and defendant in that action conspired to have the judgment affirmed and the defendant become insolvent by a transfer of his . property so that the surety might he forced to .pay the undertaking. ■
    Although the validity of a judgment cannot ordinarily be questioned in a collat, eral proceeding, yet if obtained by fraud or collusion it' may be impeached • collaterally by a stranger who is injured thereby. ■
    
      Evidence examined and held to be insufficient to justify a holding that as a mat- . ter of law the defendant had failed to make a casé for the jury upon the defense of conspiracy.
    In such action evidence that subsequent to the appeal the party for whom the defendant was surety transferred his property to the plaintiff in consideration . of board is admissible to show a conspiracy to charge the defendant with the amount of the bond. .
    Cochrane, J., dissented.
    Appeal by the 'defendant, Oharles M. Snyder, from a judgment of the County Court of Fulton county in favor of the plaintiff, entered in the office of the clerk of said county on-the loth day of December, 1906, itpon the verdict of a jury rendered by direction of the court. ' .
    The action is upon a bond on appeal for $200. It was in the usual form, and.the defendant, Charles M. Snyder, was the surety thereon. ...
    The plaintiff Brownell brought a suit in a Justice’s .Court for a board bill against his fathei-in-law, John M. Snyder. In that suit he recovered a judgment against John M. for $50 damages besides costs. John M. then appealed to the County Court for a new trial, and on that appeal the. bond in question was given. On the new trial in the County Court th.e jury rendered a verdict for the plaintiff for $196.79 and a judgment for that amount besides costs was entered. An execution was issued thereon and returned wholly unsatisfied. This action on the bond followed, The defense was that after taking the appeal from, the Justice’s Court, and before the new trial in the County Court, the plaintiff and John M. Snyder had conspired together to beat this defendant, Charles M. Snyder, on his undertaking by suppressing evidence on the trial in the County Court, and by disposing of property belonging to John M. Snyder sufficient to pay the execution. . •
    At the close of the evidence on the trial the plaintiff moved for a verdict upon two grounds: First, that the allegations of fraud in the answer did not constitute a defense to the cause of action set out in the' complaint; and, second, that what the defendant had proved or undertaken to prove upon the trial was not sufficient. The court thereupon.directed á verdict in favor of the plaintiff for $200, the amount of the undertaking, and from the judgment entered thereon the defendant has appealed.
    
      
      Clark L. Jordan, for the appellant.
    
      J. Keck, for the respondent.
   Chester, J.:

The answer .in alleging a conspiracy between this plaintiff and John M. Snyder to suffer judgment to be obtained against said Snyder to the end that this defendant, who was surety for said. Snyder upon his undertaking on appeal, might be forced to pay the amount of such undertaking, seems to set out a good defense to ah action brought to recover such amount. The liability of this defendant upon the undertaking in question is based upon the judgment heretofore obtained against said John M. Snyder, and a judgment ordinarily cannot be questioned in a collateral proceeding.' But the rule as to collateral attack is subject to the exception that fraud or collusion in obtaining the judgment may always be shown collaterallby strangers to the judgment who are injured thereby. “A stranger may collaterally impeach a judgment which stands in his way, by plea and proof Of fraud in obtaining it, because this is his only means of availing himself of the fraud.” (17 Am. & Eng. Ency. of Law [2d ed. ], 849.) And .such has always been the rule in this State. In the case of bonds for costs, etc.', it is said in an early decision (Douglass v. Howland, 24 Wend, 35, 55) that “the surety means to be concluded, always saving the right, as the law must in every case where a suit is between third persons, to contest the ' proceeding on the ground of fraudulent collusion, for the purpose of charging the surety.” In a later case it is held that “ fraud vitiates a judgment, as well as every contract tainted by it,” and such fraud may be shown collaterally by sureties. (Annett v. Terry, 35 N. Y. 256, 260.) “Fraud and imposition invalidate a judgment as they do all acts,, and may be alleged, whenever the party seeks to avail himself of the results of his, own fraudulent conduct by setting up- the judgment the fruits of his fraud,” ' (Mandeville v. Reynolds, 68 N. Y. 528, 543.) “ In the absence of fraud or collusion between the executor and the legatee, the decree, of. the surrogate.is conclusive Upon the. sureties. It binds the principal and the sureties alike, and cánnot be impeached in a- collateral proceeding.” (Scofield v. Churchill, 72 N. Y. 565, 570. See, also, Bridgeport Ins. Co. v. Wilson, 34 id. 275, 281 ; Annett v. Terry, 35 id. 256; Conner v. Reeves, 103 id. 527; 530; Chandler v. Thompson, 120 Fed. Rep. 940, 941.) It accordingly follows that an allegation of conspiracy and collusion in obtaining the judgment in question may properly be pleaded as a defense to an action upon an appeal undertaking given to secure, the payment of such fraudulent judgment.

Nor was the trial court justified in holding as matter of law that the defendant had failed to make a case for the jury upon the defense of collusion. At the date of the trial between Brownell, this plaintiff, and John M. Snyder, in Justice’s Court, John M. Snyder was residing with his son, the defendant, Charles M. Snyder. He contested the action and judgment was recovered for only fifty dollars. Prior to the trial on appeal in-County Court John M. Snyder left the defendant’s residence and went to live with -the plaintiff Brownell. When the case came on for trial in County Court he did not appear or present any defense. His attorney appeared, but without a client. In County' Court judgment was obtained for $196.79 damages,, besides a large amount of costs. The declarations of this plaintiff are sworn to, from which the jury might find that lie and his father-in-law had united to make defendant pay a judgment, and as large a judgment as could be obtained. In this trial the. defendant offered proof that at the time John M. Snyder went Ci to live with the plaintiff he had sufficient property with which he could have paid the judgment in J ustice’s Court, but that such property had been turned over to the plaintiff by John M. Snyder,'who was residing with him, for board accruing subsequent'to,the entry of the judgment in Justice’s Court. While this evidence was rejected, it' was clearly competent, as bearing upon the charge made by the defendant that the plaintiff and John FI. Snyder had colluded for the purpose of charging the defendant with the full amount of this bond. I have no doubt that'the evidence was sufficient to authorize the jury to find collusion. The judgment should, therefore, be reversed and a new trial granted, witli costs to the appellant to abide the event.

All concurred, except Cochrane, J., dissenting.

Judgment reversed and new trial granted, with costs to appellant to abide event.  