and 122 New York State Reporter a lien thereon for advances made, and that a referee be appointed to determine the amount of the lien, and that upon tender thereof the respondents be required to deliver the securities to the appellants, and, upon their failure so to do, the appellants shall have personal judgment for the value thereof, which is stated in the findings, over and above the amount of the lien of the respondents. All concur. PEOPLE v. PERNETTI. (Supreme Court, Appellate Division, First Department. June 10, 1904.) 1. APPEAL JUDGMENT BY CONSENT-RECOGNIZANCE-FORfeiture. Consolidation Act (Laws 1882, p. 370, c. 410) § 1480, provides that all recognizances shall on forfeiture be filed by the district attorney, together with a certified copy of the order forfeiting the same, with the clerk, who shall docket the same as if it were a transcript of a judgment record for the amount of the penalty, and the recognizance and the certified copy of the order shall be the judgment record. Section 1482 (page 371) provides that the court, upon the certificate of the district attorney, may by order vacate any judgment upon the forfeiture of a recognizance; and section 1483 (page 371) provides also for the vacating of such a judgment. Section 1484 (page 371) declares that the clerk of the county where such a judgment is docketed, upon receipt of a duly certified copy of an order vacating or modifying such a judgment, shall enter the same upon his docket, and the judgment referred to shall thereupon be vacated, remitted, or modified. A recognizance contained a stipulation that the principal and surety agreed that if the undertaking should be forfeited judgment should be entered on a copy of the order being filed in the office of the clerk. Held, that a judgment entered on an order forfeiting the recognizance was a judgment by consent and not appealable. 2. SAME-MOTION TO VACATE. The principal and surety had a right to move to vacate the order forfeiting a recognizance and the judgment entered thereon. 3. SAME-ORDER DENYING MOTION-CONCLUSIVENESS. An order denying a motion to vacate a judgment entered on forfeiture of a recognizance and not appealed from is binding on the surety. Appeal from Court of General Sessions, New York County. Maria G. Pernetti and another entered into a recognizance which was declared forfeited, and, from a judgment entered upon the order declaring such forfeiture, said Pernetti appeals. Appeal dismissed. Argued before HATCH, MCLAUGHLIN, O'BRIEN, INGRAHAM, and LAUGHLIN, JJ. Amos H. Evans, for appellant. INGRAHAM, J. The appellant, with one Messina Genova, who had been arrested upon a charge of homicide, entered into a recognizance whereby they jointly and severally undertook "that the abovenamed Messina Genova shall appear to answer the charge above named, in whatever court it may be prosecuted, and shall at all times render himself amenable to the orders and process of the court, and if convicted shall appear for judgment and render himself in execution thereof; or, if he fail to perform either of these conditions, that he will pay to the people of the state of New York the sum of fifteen hundred ($1,500) dollars." At the foot of this recognizance there was signed by the principal, and the defendant as surety, a stipulation whereby the said principal and surety agreed and consented, "in case said undertaking shall be forfeited, that a copy of the order of the court forfeiting the same, together with this undertaking, be filed in the office of the clerk of the county of New York, and that judgment may be entered for the several sums set forth in said undertaking, and that execution issue forthwith thereon according to law." This recognizance was, by an order of the Court of General Sessions, dated the 29th day of June, 1903, forfeited, and it was further ordered that the recognizance, "together with a certified copy of this order, be filed in the office of the clerk of the county of New York, and that judgment be entered thereon according to law, against the said Antonio Messina Genova, the defendant above named, and the said Maria G. Pernetti, his surety, for the several sums set forth in said recognizance." No judgment entered upon this recognizance appears in the papers upon which this appeal was heard; but there is a notice of appeal by which the defendant appeals to this court from the judgment entered on the 30th of June, 1903, in favor of the plaintiff, and against the defendant, for the sum of $1,500, and that on said appeal the defendant would ask the court to review the direction or order of the Court of General Sessions of the Peace, made and entered in said court on the 29th day of June, 1903, directing the forfeiture of the undertaking signed by the defendant. There is nothing to review upon this appeal, as it does not appear that any judgment was ever entered upon the order forfeiting the recognizance. The district attorney, upon notice, moved to dismiss the appeal, and from the papers submitted on that motion it appears. that after the entry of this order forfeiting the recognizance a judgment was duly entered in the office of the clerk of the Supreme Court, based upon the order forfeiting the recognizance, and the stipulation of the parties thereto in favor of the people against the principal on the undertaking and his surety; that after that judgment was entered the defendant made a motion to vacate that judgment, based upon the same ground as is presented upon this appeal, which motion was denied by the Special Term of the Supreme Court; and that from that order entered upon the denial of that motion no appeal was taken. This judgment was entered under the provisions of section 1480 of the consolidation act (chapter 410, p. 370, Laws 1882). That section provides that: "All recognizances given to answer to a charge preferred on being forfeited, shall be filed by the district attorney, together with a certified copy of the order of the court forfeiting the same, in the office of the clerk of the said city and county, and thereupon the said clerk shall docket the same in the book kept by him for the docketing of judgments, transcripts whereof are filed with him as such clerk, as if the same was the transcript of a judgment record for the amount of the penalty, and the recognizance, and the certified copy of the order forfeiting the recognizance, shall be the judgment record." and 122 New York State Reporter Section 1482 of the consolidation act (page 371) provides that: "The Court of Common Pleas, upon the certificate of the district attorney, may, upon such terms as are just, by order, vacate and set aside any judgment heretofore entered, or that may be hereafter entered, upon the forfeiture of such recognizance against such principal or surety, or either of them." And by section 1483 (page 371) a judge presiding at the Court of General Sessions of the Peace in and for the city and county of New York, or any justice presiding at the Court of Oyer and Terminer in said county, may, upon a certificate of the district attorney, by order, vacate and set aside or modify any judgment entered upon the forfeiture of such recognizance. By section 1484 (page 371) it is provided that the clerk of the county where said judgment is docketed, upon the receipt of a duly certified copy of the order of such court vacating or modifying such judgment, shall enter the same upon his docket, and the judgment referred to in said order shall thereupon be and become vacated, remitted, or modified, in accordance with the terms of said order. These provisions were before the Court of Appeals in the case of People v. Quigg, 59 N. Y. 83, where it was held that this was in effect a judgment by consent. The court there said: "By the recognizance the defendants acknowledged an indebtedness to the people in the sum named, subject to a defeasance, and consented that upon a failure to perform the condition the debt should become absolute, and might be made a debt of record and judgment perfected thereon, which should be a lien upon real property, and upon which execution might issue as upon other judgments for the recovery of a sum certain." And subsequently, in the case of People v. Cowan, 146 N. Y. 348, 41 N. E. 26, the Quigg Case was followed, the court saying: "The peculiarity of a judgment on a recognizance in New York City does not make it one entered without appearance or service of a summons, and that by signing it [the consent to judgment] the defendant consents that, in case of forfeiture, judgment may at once be perfected thereon, upon which a general execution may issue. Such written consent to the entry of judg ment constitutes a voluntary appearance in the action and submission to the jurisdiction, and does not exclude the right of the creditor to institute supplementary proceedings." This judgment, therefore, having been entered by the consent of the appellant, which expressly authorized the clerk to enter the judgment upon filing an order of the court forfeiting the recognizance, and that order having been filed, the judgment as entered was a judgment by consent, from which it is quite clear there was no appeal. The order forfeiting the recognizance being ex parte, the defendant had a right to move to vacate it if unauthorized. The defendant also had a right to move to vacate the judgment if unauthorized. The defendant made the latter motion, and was unsuccessful, and from the order denying that motion no appeal was taken, The right of the defendant to have the judgment vacated was on that application definitely determined, and that determination, being unreversed, is a binding adjudication upon the defendant. So far as appears by this record, the order forfeiting the recognizance was not justified, as it does not ap pear that the principal was ever called upon to answer the charge of homicide, and the liability of the surety was conditioned upon his failure to appear and answer that charge. But, for the reasons stated, this question cannot be considered on this appeal. It follows that the motion made by the district attorney to dismiss the appeal must be granted. All concur. TOLMIE v. FIDELITY & CASUALTY CO. OF NEW YORK. (Supreme Court, Appellate Division, First Department. June 10, 1904.) 1. INSURANCE-EMPLOYERS' LIABILITY POLICY-CONDITIONS-ACTION-PROOF. Where an employers' liability policy provided that it did not insure against injuries caused by a subcontractor or his workmen, it was necessary for insured to prove, in an action on the policy, that the liability on which the action was based did not arise from any act of a subcontractor or a subcontractor's servant. 2. SAME-ACTION ON POLICY-EVIDENCE OF LIABILITY-JUDGMENT IN FORMER ACTION. A contractor erecting a building for a city gave it a bond of indemnity against liability by reason of his negligence, and defendant casualty company insured the contractor against liability for damages on account of injuries, but it was provided that the indemnity should not cover injuries caused by a subcontractor or by a subcontractor's servant. Α person fell into an excavation made for the building, was injured, and obtained a judgment against the city, the casualty company having knowledge of the action and an opportunity to defend; and the city recovered from the contractor, who sued the casualty company. Held, that the judgment roll in the action against the city was evidence of the defect which caused the injury, and of the injured person's freedom from negligence, and the amount recovered, but it did not establish whether the defect was due to the negligence of insured, or the negli gence of a subcontractor or a subcontractor's servant. 3. SAME LIMITATIONS-CONDITIONS OF POLICY. Code Civ. Proc. § 414, provides that the general provisions as to limitations of actions will not apply to a case where a shorter limitation is prescribed by the written contract of the parties. Held, that a stipulation in an employers' liability policy that no action should be brought thereon after the expiration of the period within which an action for damages on account of the injuries might be brought, unless at the expiration of such period there should be a suit pending against the insured on account of such injuries, was valid, though the period prescribed for bringing an action against the insurer was less than that provided for by statute. Ingraham, J., dissenting. Appeal from Trial Term. Action by Murdo Tolmie against the Fidelity & Casualty Company of New York. From a judgment in favor of defendant (84 N. Y. S. 1020), and from an order denying a new trial, plaintiff appeals. Affirmed. Argued before MCLAUGHLIN, PATTERSON, O'BRIEN, INGRAHAM, and LAUGHLIN, JJ. L. Laflin Kellogg, for appellant. and 122 New York State Reporter * * MCLAUGHLIN, J. On the 2d of November, 1895, one Robert Wood and Murdo Tolmie, composing the firm of Wood & Tolmie, entered into a contract with the city of New York to build for it public overlook in Corleas Hook Park, and agreed that during the performance of the work they would place proper guards around the same, and at night keep suitable and sufficient lights for the prevention of accidents, and would indemnify the city against any and all liability or damage which it might sustain by reason of their negli gence. A few days later they entered into a contract with M. Kane & Son, by which the latter agreed to do all the excavating and furnish all the materials necessary for the erection of the building, and also "to be responsible for any accident caused to persons or property through inattention, defective materials or the carelessness or neglect of workmen while in the performance of this contract." Wood & Tolmie, prior to entering into the contract with the city, obtained from the defendant a policy of indemnity insurance, by which the defendant agreed to indemnify them in the aggregate sum of $10,000, and to any one person in the sum of $1,500, for a period of one year, against liability for damages on account of fatal or nonfatal injuries accidentally suffered by any of their employés, and, by an indorsement annexed to and forming a part of the policy, the indemnity was extended so as to cover their liability to workmen employed by other contractors and the public, arising out of personal injuries caused by them or their workmen, "but not caused by a subcontractor or subcontractor's workmen." On the 19th of November, 1895, one McGann fell into an unguarded excavation which had been made for said building, and sustained injuries, for which he claimed damages against the city, and subsequently brought an action to enforce the same. The defendant was notified by Wood & Tolmie of McGann's injury, in accordance with the terms of the policy, and we think a fair consideration of all the evidence shows that it had notice of the commencement of the action by McGann against the city, and that it was requested, or at least had an opportunity, to defend the same. Its attorney did take charge of the trial, though he testified, and the jury found, that in doing so he acted for the city, and not for this defendant. It is, however, in view of the conclusion at which we have arrived, of no importance in which capacity he acted. After the commencement of the McGann action, certain moneys of Wood & Tolmie were retained, under a clause in their contract with the city, for the purpose of indemnifying the latter against any sum which it might become liable to pay in that action; and for the purpose of releasing such funds, on the 28th of March, 1896, they and the City Trust, Safe Deposit & Surety Company of Philadelphia gave a bond to the city which provided that, in consideration of the city's paying the moneys due to the plaintiff, they would indemnify and save it harmless against "all loss, damage, costs, charges, and expenses" to which it might be put, or which might be recovered against it, by reason of the McGann claim, and action brought by him, "whether groundless or otherwise," and would pay and satisfy all judgments which might be recovered by McGann by |
