
    Wing et al. v. Rogers.
    
      (Supreme Court, General Term, First Department.
    
    December 31, 1891.)
    Stay op Proceedings—Condition op Undertaking—Return op Depositions.
    A surety signed an undertaking for a stay of proceedings in certain actions until the deposition of a witness in Santiago, Chili, could be taken, to be used by defendant in the actions. The undertaking recited that whereas, defendant obtained “ an order in both of said actions, staying the trials thereof until a return of a commission issued to take the testimony of J.,” etc., after which followed an absolute undertaking to pay any judgments which might be procured against defendant in those actions. The order in pursuance of which the undertaking was given provided that the trial of the actions be stayed until the return of the commission. The commission was never returned, and the stay was vacated. Held, in an action on the undertaking, that the recitals of the undertaking and the staying order, considered together, showed that the obligation was intended to be, and was in fact, candi tioned upon the return of the commission, and that the failure of plaintiffs to pro cure a return of the commission relieved defendant of all liability on the undertaking. Inoiíaham, J., dissenting.
    Appeal from circuit court, New York county.
    Action by John D. Wing and another against Amos Rogers. From a judgment for plaintiffs, defendant appeals.
    Reversed.
    Argued before Van Brunt, P. J., and Daniels and Ingraham, JJ.
    
      Clarke & Culver, (B. Floyd Clarke, of counsel,) for appellant. Cravath ■& Houston, (John W. Houston, of counsel,) for respondents.
   Daniels, J.

The verdict was recovered for the sum of $10,521.69 upon an •undertaking given by the defendant to pay any judgments that might be recovered in three different actions brought by the plaintiffs against Rowland N. Hazzard, two of which had previously been consolidated. In those actions the defendants obtained leave to issue a commission to Charles Walker Martinez, or to Jorge Huneues, residing at Santiago, in Chili, to take the deposition pf Jared E. Lewis as a witness on behalf of the defendant. The defendant applied to the court for a stay of proceedings until the return of the commission. And, after directing the commission to be issued, this stay was ordered in case the defendant should file an undertaking with one or more sureties, conditioned to pay any judgment or judgments which might be recovered against him in the three actions, or in either of them. An undertaking was presented in compliance with this order, subscribed by the defendant, but the attorneys for the plaintiffs in the actions were unwilling to réeeive it, and refused to accept it, because they deemed the responsibility of the defendant to be inadequate by way of this security; and while this disagreement existed, and for the purpose of arranging it, the attorneys for the plaintiffs consented to accept the undertaking of the American Surety Company for the sum of $7,500 in part compliance with the order, and an undertaking subscribed by the defendant as surety for the residue, and these undertakings were given pursuant to this arrangement, and in that manner the conditions prescribed by the order upon which the stay was direct ’d were complied with. The commission was then sent to the commissioners, one of whom passed it over to the witness, to write out his answers to the interrogatories, and that was done by him, and the commission, with the answers, returned to the commissioner. But the witness never appeared before the commissioner to verify the answers by his oath, and the commission accordingly was not returned. The witness remained in Santiago from early in December, 1888, until the middle of September, 1889, and in May, 1890, arrived in the city of New York, and was examined as a witness upon the trial. Prior to the trial of t-he action, and in August, 1890, the plaintiffs moved to vacate the stay m this manner provided for by the order directing the commission which was entered on the 7th of December, 1888, and an order was entered vacating the stay, and it was after that time that the plaintiffs brought this action to trial. Upon this state of facts this action was brought against the defendant, as surety in the undertaking subscribed by him, to recover so much of the judgments as would not be satisfied by the obligation of the American Surety Oompany, and it was for that residue that the verdict was directed against the defendant. In his behalf it has been contended that no legal liability had arisen against him under the terms of the undertaking. This undertaking is as follows:'

“Whereas, Rowland N. Hazzard, the defendant in the above-entitled actions, on December 7th, 1888, obtained from this court an order In both of said actions, staying the trials thereof until a return of a commission issued to take testimony of Jared E. Lewis as a witness for the defendant, provided that the said defendant should give an undertaking with sufficient sureties, conditioned that said defendant will pay any judgments that may be recovered against him in these actions; and whereas, the defendant has given an undertaking executed by the American Surety Company, conditioned to pay any judgments that may be recovered in these actions, or either of them, up to the amount of $7,500; and whereas, Amos Rogers has given a bond for any amount which may be recovered against the defendant, which bond, upon the execution hereof, is to be considered canceled, and null and void; whereas, the plaintiffs have stipulated to accept as sufficient undertaking by the American Surety Company and this undertaking: Row, therefore, in consideration of the premises and one dollar, to me in hand paid, I, Amos Rogers, of Ro. 45 Broadway, Rew York city, do, pursuant to the above order and stipulation, undertake that the said Rowland R. Hazzard will pay any judgments that may be recovered against him in these actions, or either of them, over and above the sum of $7,500, secured to be paid by the American Surety Company, as aforesaid; it being understood that my liability hereunder is limited to the amount of the said judgment or judgments, with interest, less $7,500. In witness whereof I have hereunto set my hand and seal, this 12th day of April, 1889. Amos Rogers. [Seal.]”

—And by its recital it appears to have been given to secure to the defendant in the other actions this stay of proceedings until the return of the commission; and further, to exhibit that to have been the design and purpose of the undertaking, the order containing the provision for the stay of proceedings mentioned in this recital is also entitled to be considered, for they are both together necessary to exhibit the object by way of consideration, as well as the extent of the obligation entered into by the defendant. Sonneborn v. Libbey, 102 N. Y. 539, 550, 7 N. E. Rep. 813. This order is in these words: “Upon reading and filing the order to show cause, the affidavit of Rowland R. Hazzard, on which said order to show cause was granted, and due proof of service of said order and the affidavit upon the attorneys for the plaintiffs, and the affidavits of Paul D. Cravath and Julius M. Ferguson, hereto annexed, and upon all the papers and proceedings herein, and after hearing Mr. Lockwood, of counsel for defendant, in support of said motion, and Mr. Cravath, of counsel for plaintiffs, in opposition thereto: Row, on motion of Crane, Lockwood & Fowler, attorneys for the defendant, it is ordered that this motion for a commission to take the testimony of Jared B. Lewis as a witness for the defendant be, and it hereby is, granted, and that a commission issue in the ordinary form in both of the above-entitled actions to Carlos Walker Martinez, or to Jorge Huncues, counselors at law, at Santiago, Chili, at South America, to examine under oath, upon interrogatories and cross-interrogatories to be annexed to said commission, Jared B. Lewis as a witness on behalf of defendant at said Santiago, Chili, at South America, and that plaintiffs be at liberty to join in said commission by preparing and annexing thereto cross-interrogatories. And it is further ordered that the trial of these actions be stayed until the return of said commission, provided defendant shall, within ten days from the date of this order, give and duly file an undertaking, with one or more sureties, to be approved by the court, conditioned that said defendant will pay any judgment or judgments that may be recovered against him in the above-entitled actions, or either of them; and, if defendant shall fail to justify to the satisfaction of the court upon notice of exception from plaintiff’s attorney, then this stay shall be vacated without further order.” And it is clearly to be inferred from the order and the undertaking, considered together, although the latter expresses an absolute obligation to pay the judgments, that this obligation was intended to be and was in fact conditional upon the defendant in the other actions having a stay of proceedings until the return of the commission. That was the advantage secured to that defendant by the order, and it was the foundation or consideration on which this defendant became a p.arty as a surety to this undertaking. It was therefore conditional in' its effect, binding the defendant to the payment of these judgments only in case the defendant in the other actions was secured this stay until the return of the commission. That was not only the language, but the effect, and the entire effect, of the obligation which the defendant entered into. And before an action for the recovery of this amount of the judgments could be maintained against him it was essential that this condition should appear to have been observed. Oakley v. Morton, 11 N. Y. 25. If its performance had been defeated by any act of the defendant, that would have avoided the effect of the condition. But there was no act, either upon his part or on the part of the defendant in the original actions, for which this surety became responsible, which prevented the return of the commission ; and compliance with the terms of the order as to the stay was therefore not dispensed with, either by anything which was held in Weeks v. Little, 89 N. Y. 566, or Delaware & H. Canal Co. v. Pennsylvania Coal Co., 8 Wall. 276. The undertaking, construed with the order, provided for the payment of this excess of the j udgments by the defendant only in case the defendant in the original actions was secured this stay of proceedings until the return of the commission. There was no obligation, either expressed, or implied by any language contained in the order or the undertaking, imposed upon the defendant to pay in case the order staying proceedings should be vacated, or the witness named in it should return to the city of Yew York. Each was an entirely different state of facts from those upon which the surety became bound. And it is no answer to the objection which has been made that it could have been no benefit to the surety or the defendant in the other suits .that the stay of proceedings should be prolonged the time when the order was • made vacating it; for the contract entered into by the undertaking was not to become operative by the vacation of the order or the return of the witness, but the sole and only condition upon which its validity rested was that the stay should continue until the return of the commission. That was the obligation, and the only obligation, into which the defendant entered by this undertaking. It was not absolutely necessary that the commission should be fully executed before it was returned, but it was competent for the commissioner to return it when the witness failed to appear before him and verify the answers which he had written to the interrogatories; and the plaintiffs in “ the action, as well as in the other suits, were entitled to have the commission returned in case of a failure on the part of the commissioner, through the absence of the witness, to complete its execution. There was no want of power, therefore, on the part of the plaintiffs to comply literally, as well as substantially, with this condition, on which the liability of the defendant had been made to depend. They failed to do that; and, having so failed, and the commission never having been returned, the event has not arisen on which the defendant undertook to pay this amount of the judgments recovered against the defendant in the other suits. But by the judgment which has been recovered in this suit the defendant has been held liable upon a state of facts on which his liability was in no manner made to depend. He had agreed to become liable in one event only, and that event has not yet transpired; and for that reason he was not liable in this action upon his undertaking, and a verdict, instead of being directed against him, should have been directed in his favor. This seems to be the fair effect of Collins v. Ball, 31 Hun, 187, and of Hemmingway v. Poucher, 98 N. Y. 281. The undertaking, construed with the order, was a security to the plaintiffs for the payment of this residue of their judgments only when the commission should be returned. It never has been returned, and no right of action consequently accrued to them, and the judgment should be reversed, and a new trial ordered, with costa to the defendant to abide the event.

Van Brunt, P. J., concurs.

Ingraham, J.,

(dissenting.) The bond or undertaking upon which plaintiffs seek to recover in this action was given to make effectual a stay of the trial of certain cases until the return of a commission issued under the order of the court in the actions. The bond recites the order, the provision for the stay until the return of the commission issued to take the testimony of the witness named, and then provides as follows: “I, Amos Rogers, of No. 45 Broadway, New York city, do, pursuant to the above order and stipulation, undertake that the said Rowland N. Hazzard will pay any judgment that may be recovered against him in these cases, or either of them, over and above the sum of $7,500, secured to be paid by the American Surety Company as aforesaid.” And it is to recover the amount of these judgments subsequently obtained against Hazzard over and above the sum of $7,500 that this action is brought. The order of the court recited in this bond or undertaking provides for the issuing of a commission, and then contains a provision that the trial of the action be stayed until the return of the commission, provided the defendant shall within 10 days file an undertaking, to be approved, and conditioned that said defendant will pay any judgment or judgments that may be recovered against him in the above-entitled'actions, or either of them. The order granting the stay having been recited in the bond, and the bond having been given in pursuance of the order, we must construe the bond and the order so far as they throw light upon each other, and thus arrive at the intention of the court and of the parties, (Sonneborn v. Libbey, 102 N. Y. 550, 7 N. E. Rep. 813;) and, construing them together, it seems to me that the intention of the court and the parties is obvious. The order was entered in pursuance of sections 887 and 888 of the Code, and it was to obtain the deposition of a witness not within the state, material to the defendant as testimony upon the trial on the issues raised by the pleadings. The Code provides for the issuing of such commission, and the court has power to stay the trial of the action until the return of such commission. The sole object for such commission is to obtain the testimony of a witness who is without the state, and whose presence at the trial cannot be enforced by subpoena; and provision is made by section 910 of the Code tl.at, where it appears by affidavit that the personal attendance of the witness upon the trial could have been procured with due diligence, an order for the suppression of the deposition may be made by the court upon the application by the party aggrieved, upon notice to the adverse party. Considering the undertaking and the order together with these provisions of the Code, it seems to me that the intention of the court and the parties was to procure the testimony of the witness whose deposition was to be taken. To do that it was necessary—as he was then without the state—to issue a commission to take his deposition, and it was also necessary, in order to have the benefit of the witness’ testimony upon the trial, that the trial of the action should be stayed until the return of the commission or the return of the witness to the state. The court granting the stay required as a condition that the defendant in that action give a bond to secure the payment of any judgment that the plaintiff should obtain against him, and that bond was given. The commission was issued, and the stay became operative. The object of that stay, however, was simply to make the order for the commission effective for the purpose for which it was given, viz., to procure the testimony of the proposed witness for use at the trial. There was no express condition in the bond that the stay should continue until the commission was returned; and, as soon as the witness returned within this state with intention of remaining here, so that his attendance at the trial could be procured, the commission issued to take his testimony became inoperative. It could not then be executed and returned, because the witness was not at the place to which it had been issued, to execute it. The return of the commission therefore became impossible. By the stay the defendant in the action had obtained what he desired. He was in a position to have the benefit of the testimony of the witness on the trial of the action. The witness was within the jurisdiction of the court, subject to its subpoena, and the defendant had the opportunity of obtaining his testimony upon the trial of the action. The return of the commission became impossible: but, if it had been possible, it would have been unavailing, because, under section 910 of the Code, the court would have been justified in suppressing the commission upon evidence that the witness had returned, and could be produced on the trial. The stay that was procured by the giving of the bond was effectual until the return of the witness to the jurisdiction of this court, and upon such return the advantage to the defendant in the suits in question had been gained, just as much as if the commission had been returned, and the consideration for the giving of the bond or undertaking was complete. The subsequent vacation of the stay had no more effect than if it had been vacated by the return of the commission, so far as the liability of the defendant was affected. I think, therefore, the court below was right in directing a verdict for the plaintiffs, and the judgment should be affirmed, with costs.  