
    Morris Steinbock, Resp’t, v. George A. Evans et al. App’lts.
    
    
      (Court of Appeals, Second Division,
    
    
      Filed December 2, 1890.)
    
    1. Undertaking—Belease erom.
    A mere postponement of one of tlie ordinary proceedings in a case in which an undertaking has "been given does not release the sureties from liability.
    2. Same—Judgment.
    Notwithstanding § 549 of the Code of Civil Procedure, a defendant may consent in writing to the entry of a judgment against him which will authorize an execution against his person, and if entered in good faith and without collusion, it will be sufficient to sustain a recovery against sureties on an undertaking given before judgment to procure the defendant’s discharge from an arrest under an order issued in,the action.
    Appeal from a judgment of the general term of the New York superior court, which affirmed a judgment entered on the decision of a trial term.
    
      James A. Patrick, for resp’t; Kelson S. Spencer, for app’lts.
    
      
      Affirming 18 N. Y. State Rep., 325.
    
   Follett, Oh. J.

January 22, 1885, Morris Steinbock brought an action against Charles W. Rodgers in the superior court of the city of New York and alleged in his complaint that the defendant on the 7t-h day of April, 1884, by false and fraudulent pretences obtained $6,000 from the plaintiff and had paid no part thereof. January 23 the defendant was arrested and held to bail in the sum of $2,500 pursuant to title one of chapter seven of the Code of Civil Procedure, and on the same day the defendant in that action and the appellants in this undertook “jointly and severally in the sum of two thousand five hundred dollars that the above-named defendant arrested as aforesaid shall at all times render himself amenable to any mandate which may be issued to enforce a final judgment against him in the action,” pursuant to the third subdivision of § 575 of the Code of Civil Procedure. March 7, 1885, the defendant answered admitting that he, with another, borrowed the money, but denied that it was obtained by false pretenses. The issues so joined were called for trial March 8, 1886, when the parties to the action entered into a written stipulation by which the defendant withdrew his answer and the plaintiff stipulated not to enter judgment before March 29, 1886, and if before that date the defendant should pay the plaintiff $3,000, then judgment was not to be entered before July 1, 1886, and if prior to the last-mentioned date the defendant should pay the remainder due to the plaintiff, with interest and costs, that the action was to be discontinued.' The stipulation contained the following provisions: In case the plaintiff shall enter judgment herein upon the defaults in either of the payments above provided, lie shall have the same right to enforce said judgment so entered by execution as he could have had had such judgment been entered on a verdict of a jury in favor of the plaintiff in this action.’5 “ The defendant recognizes by this stipulation his full liability to the plaintiff upon the said note, but hereby disclaims any admission of the truth of the allegations of fraud in the complaint contained and enters into this stipulation solely as a means of providing security for the payment provided for and of providing a remedy in case of a default in the said payments.”

This stipulation was made without the knowledge of the appellants in this action, and they never learned of it until this suit was begun. March 26, 1886, this stipulation was given, without the knowledge of the appellants:

“Moticeof application for judgment is hereby waived. It is consented that the clerk enter judgment for the amount demanded in the complaint, and costs.

“Eaton & Lewis,

u Attorneys for Defendant.

“Dated, Mew York, March 26, 1886.”

On the 7tH day of April, 1886, a final judgment was entered in the action against Bogers, for $6,853.49, on the pleadings and the two stipulations, and on the next day an execution against the property of the defendant was issued, and on the 5th of June following it was returned unsatisfied and on the 11th of June an execution was issued on the judgment to the sheriff of the city and county of Mew York, who, on the 30th day of that month, returned it that the defendant in the action could not be found in this county. On the 14th of July, 1886, this action was brought upon the undertaking, which resulted in a judgment in the sum of $2,500, with interest from June 30, 1886, which was affirmed at general term. The appellants insist that they are not liable on this undertaking, because the liability of their principal was not established by common law evidence.

In Conner v. Reeves, 103 N. Y., 527; 4 N. Y. State Rep., 216, an execution had been issued to Conner, then the sheriff of Mew York, and a bond of indemnity was executed by the plaintiff in the execution and two sureties conditioned to save harmless the sheriff from all liability or judgment that might be recovered against him by reason of selling certain chattels by virtue of the execution. Subsequently the sheriff sold, pursuant to his execution, and thereafter a judgment was recovered against him by one Kahrs, who established that he, and not the defendant in the execution, was the owner of the property sold. The judgment against the sheriff was not the result of a trial of the action, but was entered upon the consent of the counsel for the respective parties in that action by which it was agreed that the plaintiff should have a judgment for $400 damages and $100 costs.

Subsequently the sheriff brought an action on his bond of indemnity, and the defendants interposed the defense that they were not liable because the liability of the sheriff was not established by a trial, but it was held, 103 N. Y., 527, that in th& absence of evidence of collusion on the part of the sheriff that a judgment by his consent was as binding upon the sureties in the undertaking as though it had been recovered in a contest This brings ns to the consideration of whether the first stipulation by its terms waives the plaintiff’s charges of fraud against the defendant, and we think it is not subject to any such interpretation. The answer was withdrawn, but it was not stipulated that the charges of fraud were to be withdrawn and that only a judgment upon contract was to be entered. The defendant merely asserted in the stipulation that he did not admit his liability in fraud, but it was quite immaterial whether he did or not, having withdrawn his answer and authorized in writing the entry of judgment. We do not think that a mere postponement of one of the ordinary proceedings .in a case in which an undertaking has been given releases the sureties from liability. The rule contended for by the appellants would lead to the discharge of sureties on undertakings and legal proceedings in nearly all cases where a postponement of the day of judgment was had by consent of the parties to the action. The extension in this case was not at all like an agreement not to issue an execution for a definite period upon a judgment rendered. Notwithstanding § 549 of the Code of Civil Procedure, a defendant may consent in writing to the entry' of a judgment against him which will authorize an execution against his person, and if entered in good faith and without collusion it will be sufficient to sustain a recovery against sureties on an undertaking given before judgment to procure the defendant’s discharge from an arrest under an order issued in the action.

Under § 1915 of the Code of Civil Procedure the plaintiff was entitled to recover the penalty of the bond, “ with interest thereupon from the time when the defendant made default in the performance of the condition,” which was June 30, 1886, the date when the execution against the defendant’s body was returned unsatisfied.

The judgment should be affirmed, with costs.

All concur, except Haight, J., absent.  