Sweeney v. Metropolitan Surety Co.
Appellate Division of the Supreme Court of the State of New York
Appeal by the defendant, The Metropolitan Surety Company, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 19th day of May, 1908, upon the decision of the court, rendered after a trial at the Kings County Special Term, overruling the defendant’s demurrer to the complaint.
1Opinion of the Court
Gaynor, J.:
The defendant gave its bond to the plaintiff as surety with Can-let as principal to pay $1,000 to the plaintiff; the condition of the bond being “ that if the said principal shall pay any judgment which may be recovered against him in the above entitled action ” (in which this plaintiff was the plaintiff), “ then this obligation to be void”. The complaint alleges the recovery of a judgment, but contains no allegation that it is unpaid. This case is no exception to •the general rule that payment has to be pleaded as a defence. That the condition of the bond depends on payment by one…
2Cited by1 opinion
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