MARSHALL v. MACY

MARSHALL v. MACY. N. Y. Supreme Court, First Department; General Term, December, 1880. Restitution.—Principal and Surety.—Demand. Where a judgment against sureties on an undertaking is reversed, ' and a decision rendered in their favor, the plaintiff will, on the sureties’ motion, be compelled to pay over to them money paid to him upon the judgment by their principal, as the principal must be deemed to have paid it on their behalf. The essential pointisthat the judgment was paid and not assigned. The principal (not being a ■party to the undertaking) has no remedy against the plaintiff, and whetherthe sureties repay him is a matter between them and him only. In such case it is not necessary for the sureties to make a demand for the money before moving for restitution. Motion for restitution on behalf of defendants. The plaintiffs recovered judgment against the defendants, who were sureties on an undertaking on appeal from a judgment. Pending an appeal from the judgment by the defendants, and after the return of an execution unsatisfied against the property of the defendants, and while they were being subjected to an examination in proceedings supplementary to execution, the plaintiffs received the amount of their judgment from one Lamb-man, the party for whom the defendants became sureties, and executed and delivered a satisfaction-piece to him, and the judgment was thereupon satisfied. Subsequently the judgment against the sureties was reversed, and, upon a new trial, judgment was rendered for the defendants, who thereupon, without making a demand, moved at the general term for a restitution of the moneys paid .to the plaintiffs, on the former judgment against the defendants. Geo. W. Van Slyck, for the motion. A. 2i. Dyeit, opposed. [MAJORITY — Barrett, J.] Barrett, J. I have examined the papers and think restitution should be ordered. There was no necessity for a demand, and I find no provision of law requiring it. As to the other point, I think the judgment in theory of law was paid by the defendants. It was as though the principal, Mr. Dambman, had furnished the defendants (his sureties) with the means of satisfying the judgment; he necessarily paid it for them and on their behalf. His going direct to the plaintiffs’ attorney changed nothing. The judgment' against the defendants was not purchased by or assigned to him. It was paid and satisfied of record. That is the essential thing; the method was immaterial. Dambman has no resort or remedy against the plaintiffs. If the defendants, upon the consummation of the restitution, repay Dambman, that is a matter between themselves and him, with which plaintiffs have nothing to do. Davis, P. J., and Beady, J., concurred..