#### TYLER v. HILDRETH et al.

(Supreme Court, General Term, Third Department.

May 8, 1894.)

1. Appeal— Review—Weight op Evidence.

The decision on a disputed question of fact involved in a motion by a special term on conflicting affidavits will not be disturbed on appeal.

2. Same—Objections not Raised Below.

Am objection that a disputed question of fact involved in a motion should not have been determined on affidavits, but the party left to his relief by action, cannot be raised for the first time on appeal.

3. Principal and Surety—Substitution op Surety—Remedy by Motion.

A surety may apply to the court by motion to compel the assignment of a judgment against him and his principal on his offer to pay the judgment. .

Appeal from special term, Albany county.

Action by Sarah A. Tyler against Timothy P. Hildreth, Alfred C. Peck, Prescott Hildreth, and George B. Thompson on a promissory note made by defendants George B. Thompson and Prescott Hildreth to the order of defendant Timothy P. Hildreth, and indorsed by said Timothy P. Hildreth and Alfred G. Peck. Plaintiff obtained judgment for $932.16 damages, and $28.48 costs. Afterwards the judgment was assigned to one Abner J. Griffin. Said Prescott offered to pay the judgment to Griffin, and demanded an assignment thereof, which was refused. The judgment was assigned to one Robert H. Mott by mesne assignments. Peck called at Mott’s place of business for the purpose of tendering the amount due, but Mott _was absent, and he now moves for an order compelling an assign"ment to him of said judgment, and states in his moving affidavit, in addition to the facts above recited, that the sheriff threatens to sell his property under execution issued on the judgment. The application was granted, and the other defendants appeal. Affirmed.

Argued before MAYHAM, P. J., and PUTNAM and HERRICK, JJ.

Chas. F. Doyle, for appellants.

Morrison & De Groot (B. E. De Groot, of counsel), for respondent.

PUTNAM, J.

This is an appeal by the defendant Timothy P. Hildreth and by Robert H. Mott from an order directing the latter, as assignee of the judgment obtained in the above action, to assign it to the defendant Alfred G. Peck, or his appointee. The notice of motion was directed to Robert H. Mott. On its return, the defendant Timothy P. Hildreth appeared, and made himself a party to the proceeding.

It is well settled in this state that “a surety, on the payment of a judgment on which he is liable together with the principal, is entitled to be subrogated.” And he can compel an assignment of the judgment to himself, or to some one named by him. Townsend v. Whitney, 75 N. Y. 425; Trombly v. Cassidy, 82 N. Y. 155. Clearly, respondent in this case was entitled to the order obtained at special term, if the facts were as set out in his moving papers. But the appellant read several affidavits on the hearing of the motion, to *1043the effect that, although respondent on the note in question appeared to be the last indorser, yet it was agreed when the note was made between him and appellant that they should be equally liable thereon,—each liable to pay $500, if the principals of the note failed to pay it. Those affidavits were squarely denied by those read on the part of respondent. Hence a question of fact was presented to the court below on conflicting affidavits, and we cannot properly overrule the decision made thereon by that court. It has been frequently and properly held that the decision on a motion by a special term, on conflicting affidavits, will not be disturbed by the appellate court on a disputed fact involved therein. Henderson v. Jackson, 2 Sweeny, 603; Lane v. Town of Hancock (Sup.) 9 N. Y. Supp. 97.

It is claimed by appellant that the affidavits read on the motion being conflicting, and raising a sharply-contested question of fact, the motion should have been denied, and the respondent compelled to seek relief by action. It does not appear that this position was taken at special term. As far as the papers show, the appellant voluntarily submitted the question raised by the affidavits to the decision of that court. It was discretionary with the court below whether to entertain the motion, or to decline to hear it, and compel respondent to resort to an action. See Cole v. Malcolm, 66 N. Y. 363. The court below having, in its discretion, entertained and heard the motion on its merits, under the circumstances, we cannot properly hold that it erred in so doing. It has long been a common, and not deemed an improper, procedure for sureties to apply to the court by motion to compel the assignment of securities which they have been compelled to pay. Cole v. Malcolm, supra; Tromblv v. Cassidy, supra; Gifford v. Rising (Sup.) 12 N. Y. Supp. 430; Bank v. Wood (Sup.) 9 N. Y. Supp. 351. Had the papers shown that, in the court below, the appellant, instead of voluntarily submitting his case on the merits, objected to the proceedings, on the ground that the affidavits -raised a question of fact which could be determined in an action, we perhaps might have reached a different conclusion.

It is suggested that the respondent was not entitled to the order he obtained until he had actually paid the judgment. We are of opinion, however, that the papers showing the offer by, and the readiness of, defendant Peck to pay the judgment on obtaining an assignment thereof, it was within the discretion of the court below to make the order from which the appeal is taken. The matter of granting costs was also discretionary. It appears by the 'recitals in the order that appellants Mott and Hildreth appeared by their counsel, and opposed the application of respondent. Hence it was discretionary with the court whether or not to direct the payment of costs by them. The order must be affirmed, with costs. All concur.