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Gilmore v. Crowell.

security to pay the judgment. The intent was to substitute a personal obligation of sureties for the property which could by the attachment proceeding be applied to the payment of the alleged indebtedness when established by due process of law - not to any particular judgment that might be obtained, but to any judgment rendered in the action, whatever it might be.

The seizure of the property of the defendants named, or either of them, would, to the extent of the value, insure the payment of the claim asserted; and when the defendants, to reclaim it, give the undertaking required, the presumption of its sufficiency to pay the entire debt is proper. The object or design of the statute, and the intent of the legislature being considered, the agreement seems fairly within the scope of the sureties' undertaking, that they will pay any judgment obtained in the action against all or any of the defendants.

It is through their instrumentality that the property applicable is diverted, and they should see to it that their indemnity shall rest upon more substantial ground than a limited or restricted liability.

The statute under which the undertaking was given, §§ 240 and 241, provides for an obligation to pay to the plaintiff the amount of the judgment that may be recovered against the defendant in the action; and it is evident that the contemplated benefit to the plaintiff was the payment of the judgment that he might recover. The defendants herein having assumed such obligation, the statute being within their knowledge and referred to in their agreement, must be regarded as having contracted with reference to its design and intent.

It becomes, therefore, legitimately an element in the consideration of the question of what was intended by the parties, and what is within the fair scope of the contract thus considered.

The case of Kipling v. Turner (5 B. & Ald., 261,) is

Gilmore v. Crowell.

decisive of this question. The condition of the bond, in that case, was to pay, or cause to be paid, all such costs as the court should think fit to award to the defendants on the hearing of the cause, and it was held that the death of one of the defendants before costs awarded, could not be pleaded in discharge of the bond. BAYLEY, J., said: "The case is very different where persons are described by character and where they are described by name." In this case the persons are described by character. The obligation is to pay the judgment against the defendants in the action in which the undertaking was given, and two of them against whom the judgment was rendered are of that character.

Although the question is not free from doubt, in consequence of the strictness with which the contracts of sureties are construed, nevertheless, under all the circumstances, the failure to recover against all the defendants does not, from the nature and object of the agreement, seem to be an essential, indispensable prerequisite to the liability of the sureties. Such a construction, although it might be sustained on authority, should not be adopted. By holding the defendants liable, the substituted security is made available. The property seized could have been applied to the judgment obtained, for aught that appears, and the defendants should occupy the same relation to the plaintiffs. I think the judgment should be reversed.

Judgment reversed.

[FIRST DEPARTMENT, GENERAL TERM at New York, November, 1873. Ingraham and Brady, Justices.]

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SMITH VS. SONNEKALB & LIEB.

In an action for rent, the defence was, that the premises were destroyed, or rendered unfit for occupancy, by fire. It appeared that there was a sub-tenant of a part of the premises, whose tenancy had not expired. There was no proof that he had surrendered the premises to the lessees, or to the lessors, or consented that the former might surrender his term, as well as their own, to the latter. Held that under these circumstances there could not be a surrender of possession of the entire premises, by the lessees, so as to absolve them from payment of rent, under the act of 1860, (Laws of 1860, ch. 345.) That, to sustain the defence, it was incumbent upon the defendants to show a substantial surrender of the whole premises.

PPEAL, by the plaintiff, from a judgment entered upon a verdict, and from an order denying a motion for a new trial.

The action was brought to recover rent of the defendants as assignees of a lease executed by West & Robeson of premises known as 21 Park Place, in the city of New York, to one Lewis A. Osborn. The defendants, on becoming assignees of the lease, assumed the payment of the rent reserved in the lease, and the performance of the covenants and agreements of Osborn, therein contained.

The defendants, by their answer, admitted the execution of the lease to Osborn, and its assignment to them, but denied the occupation of the premises. They alleged that the premises were destroyed by fire, or so injured by fire as to be untenantable and unfit for occupancy; and that thereupon they quit and surrendered possession to the landlords, and had not since occupied the same.

On the trial it appeared that a fire had occurred in adjoining premises, by which the demised premises had been somewhat injured, some windows broken and the paint smoked and blackened, but the defendant Lieb testified that no part of the demised premises was burnt by fire. The defendants claimed, however, that the proof showed the destruction of the premises, for all purposes of occupancy or business. It appeared also that, at the time of the fire, part of the

Smith v. Sonnekalb.

premises were held by Lewis A. Osborn, under a sublease from defendants, and that his rent was paid in advance for several months. Also that the defendants never surrendered the premises to their landlord; that Osborn never surrendered; that after the premises were repaired, the defendants authorized their landlords to lease the premises on their account.

The judge charged the jury that the only two questions they had to consider were:

"First. Whether the building was so injured by the elements as to be untenantable? The witness, Mr. Sonnekalb, and his partner, Mr. Lieb, say positively they were untenantable, and they describe to you the condition of the premises after the fire. It is for you to determine whether they were or not.

The next question for you to consider is, whether they were surrendered? or, in other words, whether the lessors got possession of the premises? for that I hold to be the same thing. In my opinion it does not signify whether the lessee formally surrendered the premises, if the lessors got possession of the premises. It appears to me there is but little doubt about that; but it is for you to determine, because it is matter of fact. It appears by their own notice that they had a possession of about three months in repairing the premises. This notice was written in September, in which they state that the 'premises now are in a fit condition for the tenant,' so they must have been in possession of the premises to have them repaired.

On the other hand, the plaintiff shows that Sonnekalb, one of the defendants, authorized Mr. West to lease the premises, and West wished him to sign a paper to that effect, but Sonnekalb refused, and said he wished to see his lawyer first. That is not conclusive; still it is for you to consider how far it goes to contradict the testimony of the other side.

The amount of the rent from the first of June to the first

Smith v. Sonnekalb.

of November is $833.33. The interest is $17.65.

Therefore, if you find for the plaintiff, your verdict will be $850.98.

The plaintiff's counsel has also asked me to charge you

1st. That unless the defendant surrendered possession of the premises to the lessors, West & Robeson, the plaintiff is entitled to a verdict.

I have already said all I intend to say on that subject; that I think a formal surrender is not necessary if the lessors got possession of the building. (Plaintiff's counsel excepted.) 2d. That unless the sub-tenant Osborn surrendered possession, the plaintiff is entitled to a verdict. I say no to that. (Plaintiff's counsel excepted.) 3d. That if the defendant Sonnekalb authorized the plaintiff's assignors to relet the premises, the plaintiff is entitled to a verdict. I say no to that." (Plaintiff's counsel excepted.) The plaintiff's counsel also excepted to that portion of the charge in which the judge charged that it was not necessary to make a formal surrender of the premises, if the lessors got possession of the premises; also to that part of the charge which stated that it did not signify whether the lessees formally surrendered the premises, if the lessors got possession of the premises. Also to that part of the charge which stated that the justice held it was the same thing, whether the premises were surrendered or the lessors got possession of them.

Under the charge of the court the jury found a verdict for the defendants.

A motion was subsequently made, upon the exceptions taken by the plaintiff, for a new trial, which was denied.

S. B. Brownell, for the appellant. I. The judge's charge and refusals, as excepted to, are erroneous. The defendants' defence arises under the statute of 1860,

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