Chapin v. Thompson

The action was upon a bond made by defendant, under seal, covenanting to save and keep harmless and indemnify said plaintiff, as receiver, from all damages, suits, judgments and executions, etc. The findings of the referee are acquiesced in by both parties, as stating correctly the facts; and the referee finds, that plaintiff was receiver, as set forth in the complaint; that such bond was made and delivered; that afterward the plaintiff herein, as receiver, at the request of the defendant, took possession of certain hotel property, and used the same four months and ’ twenty-six days, under one Edward J. Chapin, agreeing to pay at the rate of §655 per year; that said rent was not paid; that on the 27th of December, 1871, more than six years after said rent became due and payable, an action for the recovery thereof was commenced in the Supreme Court by said Edward J. against the plaintiff herein for the recovery thereof, and notice of the pendency of the action was given by the said Alfred B. Chapin to said Joseph Thompson, the defendant herein; that said Thompson then offered to take upon himself the defense of said action, and to retain and employ an attorney to defend the same; that the plaintiff herein refused to allow said Thompson to defend said action, unless he would agree *782not to interpose as a defense thereto the statute of limitations; that said Thompson refused so to agree, and insisted that the statute of limitations should -be interposed and set up as defense to said action, which said Alfred B. Chapin declined and refused to have done; and Thompson, the defendant herein, presented a petition in said action to the Supreme Court, and obtained an order therein requiring the said plaintiff and the said defendant therein to show cause before said court why said Thompson should not be allowed to defend said action; and upon the hearing of said petition, both the plaintiff and defendant therein appeared by their respective counsel, and opposed the granting of an order allowing said Thompson to defend said action; and thereupon an order was made therein denying the prayer of said petition, and said action was not defended. On the 25th day of April, 1872, the said Edward J. Chapin recovered a judgment in said action against the. said Alfred B. Chapin, for $459.95 damages, and $27.09 costs, etc., which judgment has been paid by said Alfred B.; that at the time said action was commenced, the claim which it was brought to recover was barred by the statute of limitations. And the referee held, as conclusions of law, that it was the duty of the plaintiff in this action, upon the request of the defendant, Thompson, to have interposed, or have suffered said Thompson to interpose, the statute of limitations as a defense to the action brought by said Edward J. Chapin against said Alfred B. Chapin for the recovery of said rent; that having neglected so to do, and having refused to allow said Thompson so to do, upon being by him thereto requested, the plaintiff herein was not entitled to recover against said Thompson upon said bond; that the defendant herein was entitled to judgment, dismissing plaintiff’s complaint, with costs, and judgment was ordered accordingly.

There can be no question as to the proper disposition of this case by the referee. It is now settled law in this State, that statutory defenses, such as the statute of limitations, usury, etc., stand upon the same footing with other legal defenses, and are to be treated by the courts with the same respect, and given the same favor and consideration, as common-law defenses.

As between the principal and indemnitor, in a case of general indemnity against claims or suits, the judgment against the obligee *783is onIjprima facie evidence; and in a suit upon such obligation, the indemnitor may show that his principal had a good defense to the original action, which he neglected or refused to interpose, or collusion between the plaintiff and defendant in such action, and if either are established it will defeat a recovery. (Bridgford Ins. Co. v. Wilson, 34 N. Y., 275; Annett v. Terry, 35 id., 256; Binsse v. Wood, 37 id., 530, 531.) It is shown, and found by the referee in this case, that the plaintiff herein had a good defense to the action against him, of which he refused to avail himself, or allow the indemnitor to do so. By so doing 'he has now no cause of action against the defendant herein. The decision of the referee was correct.

This action, although brought by plaintiff in his name as receiver, was not necessarily so, as it was a matter entirely persónal to himself, and not of any advantage to his receivership; in fact, he so characterized it, as he brought it without leave of the court. He also acted in bad faith in not defending the action brought against him, or in allowing it to be done by the indemnitor, without conditions. Under these facts, the Special Term properly directed him to be charged with the costs.

Learned, P. J., and Boardman, J., concurred.

Judgment affirmed, with costs, and order of the Special Term affirmed, with ten dollars costs and printing expenses.