Fisher v. Boecher 25 N.Y.S. 1144

NEWBURGER, J.

This action was brought by one of two sureties against his cosurety to recover one-half of the amount paid by plaintiff upon the breach of the condition of an undertaking, which he and his cosurety, the defendant, executed. After the finding of the undertaking, a judgment was recovered against the defendant in said action. Subsequently an action was brought against the sureties upon the undertaking in question to recover the amount of such judgment, and thereupon the plaintiff herein paid the sum, with interest and costs, and brought his action to recover one-half of the judgment paid by him. The cause was tried, and, the defendant not offering any evidence, the court directed a verdict for the amount claimed, and from the judgment entered thereon this appeal' is taken. The trial justice properly denied defendant’s motion to dismiss the complaint, and the exception thereto was without merit Judgment must therefore be affirmed, with costs. All concur.