#### The Mayor, Aldermen and Commonalty of the City of New York, Respondent, *v.*The Mechanics and Traders’ Bank of the City of New York, Appellant.

First Department,

March 12, 1909.

Contract—■ agreement to indemnify municipality against liability to other claimants — evidence that city settled with claimant in had faith admissible—failure of indemnitor to appeal from judgment excused.

A municipal contractor, in consideration of moneys advanced, assigned all his interest in the contract,, including moneys to, become due thereunder. The assignee sued the city for the amount due on the completion of the contract, making another claimant'a party defendant, and on recovering judgment .and accepting payment from the city, executed a bond wherein it covenanted to' repay to the city any amounts recovered by other claimants; Thereafter the' claimant made defendant in the action established his claim, and ■ both the city and the assignee appealed from a judgment in his favor. While. the' appeal was pending, the city settled and paid the claim against the protest of • the assignee, giving notice of the payment to all parties, and stating that the appeal no longer had any force. Thereafter the city demanded that- thei assignee repay the amount paid by .it to the other claimant, and repayment being refused, brought action. The answer alleged in substance that the pay.ment-of the claim was made by the city in bad faith.

*Held,*that it was error to exclude evidence offered by the defendant tending to show that no demand had been made upon it to pajr the claimant’s judgment, and that its proposed case on appeal had not been settled by reason of the. notice by the city that the judgment was settled, and the appeal no longer in *749force, and that the defendant had insisted on its right to appeal if the judgment should he in favor of the other claimant;

That it was error to direct a judgment in favor of the city for the amount paid by it to the other claimant, for had the defendant’s testimony been admitted, there would have been a question of fact as to whether that payment was made in good faith, and whether it operated to the defendant’s injury;

That the city could not arbitrarily deprive the defendant of its right to review the judgment obtained by the claimant without taking the chances of loss should such review and a subsequent trial have resulted in the defendant’s - favor;

That, as the court excluded the defendant’s testimony tending to show that the city had acted.in bad faith and settled the judgment against the defendant’s objection, the latter was not required to request that those issues be submitted to the jury, for where there is no evidence to justify a finding in a party’s favor, it is unnecessary to make' a request that the issue be submitted.

*Held further,*that as the defendant could contest its liability when sued upon the bond on the ground that the settlement by the city was in bad faith, it was not required to prosecute the appeal from the judgment in favor of the other claimant, especially where the city gave notice that the judgment had been settled and that the appeal no longer had any force.

Ingraham and Laúghlin, JJ., dissented, with opinion.

Appeal by the defendant, The Mechanics and Traders’ Bank of the City of New York, from a judgment of the Supreme Court in favor of the plaintiff, entéred in the office of the clerk of the county of New York on the 16th day of March, 1903, upon the verdict of a jury rendered by direction of the court after a trial at the New York Trial Term, and also from an order entered in said clerk’s office on the 17th day of March, 1903, denying the defendant’s motion-for a new trial made upon the minutes.

*Charles Strauss,*for the appellant.

*Terence Farley,*for the respondent.

McLaughlin, J.:

The undisputed facts, so far as material to the question presented by the appeal, are as follows: In June, 1875, one Gavin entered into a contract with the city of New York to do certain work on Lexington avenue between One Hundred and Second street and the Harlem river. On the first of November of that year, in consideration of money advanced to him by the defendant or its predecessor, to be used in the completion of the contract, he assigned and *750transferred to the defendant all his interest therein, including moneys due and to grow due thereon. Some time thereafter the contract was completed, and there then remained a balance due from the city of $18,480.16, to recover which sum, with interest, the bank commenced an action against the city and certain other defendants, who claimed an interest therein, one of whom was Cornelius J. Winant. This action resulted, on the 15tli of December, 1886, in a judgment in favor of the bank for the full amount claimed — $29,796.91. Thereafter the city and the bank compromised, and settled the judgment, the defendant executing and delivering to the city a bond, wherein it covenanted that'it would “ well and truly p.ay all sum or sums that the said The Mayor, Aldermen and Commonalty of the City of Mew York may be compelled to pay by reason of the establishment and recovery of any such alleged claim or claims by any of said claimants or their legal representatives, and the costs, damages and expenses thereof. * * * ” Winant appealed from the judgment so far as it determined that he did not have a lien to the extent of his claim upon the amount due on the Gavin contract, and the judgment was reversed as to him and a new trial ordered. (See *Mechanics &*Traders' *Nat. Bank*v. *Winant,*1 N. Y. Supp. 659; 123 N. Y. 265.) The new trial, on the 25th of May, 1894, resulted in a decree that he had a lien to the extent of liis claim upon the moneys due upon the Gavin contract, and awarded him a judgment against the city to the amount thereof — $5,117.47 — which was thereafter compromised and settled by the city, and then it brought this action upon' the defendant’s bond to recover the amount paid.

The complaint alleged that after the rendition of the judgment in favor of Winant against the city a demand was made upon the bank to pay the amount thereof, but it failed and neglected to do so, and that on the 7th of Movember, 1894, the city paid to Winant the judgment, which then' amounted to $5,226.65.

The answer put in issue the allegation of the complaint that a demand was made upon the bank for payment and its refusal to pay; also the payment of the amount of the judgment to Winant by the city; and as a separate defense alleged, in substance, that an appeal was taken from the judgment in favor of Winant by both the bank and the city, and while such appeal ivas pending and unde*751cided, against the protest of the bank, the city settled and paid the -judgment..

At the trial the bank sought to prove that no demand was ever made upon it to pay the Winant judgment; that after an appeal had been taken by it, in which the city joined, and a proposed case and proposed amendments thereto had been served, and before the case had been settled by the trial justice, the city, against the protest of the bank, paid or compromised the judgment; and thereafter, through the corporation counsel, gave notice to all the attorneys in the case, including the trial justice, that the city had paid or settled the judgment and that the appeal no longer had any force; and by reason of that fact the case on appeal was never settled. It also sought to prove a conversation bétween the representatives of the bank and the corporation counsel at the time the bond in question was given, regarding the right of the bank to appeal from any judgment which might be obtained against the city by any of the claimants mentioned in the bond; and that notice was given to the corporation counsel, prior to the trial which resulted in a judgment for Winant, that if the result were adverse to the city, the bank insisted upon its right to appeal. Its efforts, however, were unavailing, inasmuch as all testimony tending to establish the facts sought to be proved was excluded on objection of counsel representing the city, and an exception in each instance duly taken. A verdict was directed in favor of the city for the full amount claimed, and from the judgment entered thereon and an order denying a motion for a new trial defendant appeals.

I am of the opinion the exceptions to the rulings excluding the testimony tending to prove the facts hereinbefore referred-to were well taken. The bond in question must be read in the light of the circumstances surrounding its execution and the purpose which it was designed to accomplish. It was a substitute for the money due under the contract to protect the city in case it had to pay any portion of it to other claimants, but notwithstanding the purpose, the city could not arbitrarily deprive the bank of its right to review a judgment obtained by a claimant without taking the chances of loss should such review and a subsequent trial result favorably to the bank. Had the testimony sought to be introduced by the bank been received then a question of fact would have been presented as *752to whether the payment to Winant were made in good faith, and if so, whether it operated to the injury of the bank.- That such testimony was admissible is clearly established by the case of *City of New York*v. *Baird*(176 N. Y. 269). There the action was upon a bond, the condition of which was that the obligor would- “pay and fully satisfy any judgment which may be obtained by the said Thomas Kelly against the city of New York * * * together with all costs and disbursements.” Kelly obtained a judgment against the city, from which an appeal was taken by both the city and Baird, and after steps- had been taken towards making a case' on appeal, the city, against the protest of Baird, compromised and settled' the judgment, and then brought an action on the bond to recover from Baird the amount paid. At the conclusion of the trial in that action a verdict was directed in favor of the city, which was set aside and a new trial ordered, and on appeal to this court the order setting aside the verdict was reversed and the motion for a -new trial denied. *(City of New York*v. *Baird,*74 App. Div. 238.) The determination of this court, however, was reversed by the Court of Appeals and a new trial granted. *(City of New York*v. *Baird, supra.)*In directing a new trfal, Chief Judge Parker, who delivered the opinion, said : “ We have then a situation where after consultation between the counsel for Baird and the representative of the corporation counsel an appeal was taken to. the Appellate Division by the city and Baird, and steps taken toward making a case ; but before it was possible for it to be argued, the municipal authorities changed their position and settled the judgment. * * . Oiir conclusion is that — reading this bond, as we should, in the light of the circumstances surrounding its execution, and the contract under which the money was being held by the comptroller, for which this bond-was to become a substitute for the protection of the city — the city could not deprive the principal and his sureties of Ms right of review without taking the chances of loss, should such review and a subsequent trial had by reason of it, result favorably to the principal; that midway betw'een the two extremes claimed by plaintiff arid defendants lies the true position, and the test of it is, Was the action of the municipal authorities complained of taken in bad faith ? • If so, did it operate to the substantial injury of Baird and' the surety *%*If the first question be *753answered in the affirmative, then the party indemnified cannot recover unless it shows that its action —- found by the jury to have been taken in bad faith with.the intention.-of injuring the principal or surety — did not operate to the disadvantage of either, or if it did to some extent, that after deducting the amount of damage done to them, there still remained something due on the bond.”

The condition of the bond here under consideration certainly imposes no greater obligation on the principal than did the bond in the *Bawd*case. There, Baird obligated himself t*o pay and fully satisfy any judgment*” which might be obtained by Kelly against the city, while, here the bank obligated itself to pay any sum which the city might be *“ compelled to pay*by reason of the establishment and recovery of any such alleged claim or claims.” It might be urged with much force that a payment made by way of compromise was voluntary, or at least that the city was not *compelled*to make the payment within the meaning of the bond. It certainly could not, as against the protest of the bank, make the payment, if such payment resulted to its injury.

The respondent’s counsel attempts to distinguish this case from the *Baird*case by reason of- the fact that in the latter there was a request to submit to the jury the good faith of the city in compromising the judgment, while here no such request was made. The" answer to the suggestion is that under the rulings of the trial court there was nothing to submit to the jury, inasmuch as he had refused to admit any testimony which in any way tended to show that the city had acted in bad faith in compromising the judgment; that it did so without the consent and against the objection of the bank; and in doing so the bank was injured. A request to go to a jury is based upon the proposition that there is a question of fact for its determination; that evidence has been introduced from which it may find the facts one way or the other. Where there is no evidence to justify a finding, then it is unnecessary to make such request, because if the finding were made, it would be against evidence and would have to be set aside.

It is.also suggested-—not by counsel — that the court did not err in excluding the testimony referred to for the reason that the bank had not prosecuted its appeal; that the bank having taken an appeal *754from the Winant judgment should have'gone ahead with it, notwithstanding the city paid the judgment, and, not having done so, it cannot now be heard to say that the action of the city worked to its injury. The same suggestion, doubtless, was or could have been made in the *Baird*case. He appealed from that judgment as well as the city, but after the city had paid the judgment it does not appear that he took any further steps towards perfecting the appeal. Here, after the payment of the judgment by the city, it is not at all clear that the bank could, against the city’s protest, have prosecuted the appeal. The bank had been paid the full amount of its claim. It had no further interest in the action, except in so far as the establishment of claims affected its liability upon its bond. If the city saw fit to voluntarily pay the only other recovery in the action, against the protest of the bank, I am unable to see that its interest was such that it could urge that the judgment which had been paid should be reversed. If the city did not act in good faith .and the bank was thereby injured, it could be fully protected when the city sought to enforce its liability on the bond, and, therefore, it was justified in not prosecuting the appeal, and especially so after the counsel representing the city had notified the learned trial justice who had the proposed case on appeal and amendments under • consideration, that the judgment had been settled and the appeal “ no longer had any force.”

I am of the opinion that the judgmént and order appealed from should be reversed, and a new trial granted, with'costs to appellant to abide event. .

Clarke and Houghton, JJ., concurred; Ingraham and Laughlin, JJ., dissented.

Ingraham, J. (dissenting):

The facts are stated in the opinion of Mr. Justice McLaughlin, and it is not necessary that I should restate them.

The bond given by the defendant upon which this action was brought recites that the defendant had obtained a judgment against the city of New York for .upwards of $29,000 that there were certain persons who claimed to have furnished materials and filed notice of such claims with the finance department claiming, liens upon the amount due from the city; that the defendant; claims *755that there are no such claims or liens that, are good and valid or should be so paid out of said.fund, but is desirous of protecting the said The Mayor,'Aldermen and Commonalty of the City of Mew York from any loss or damage by reason of any such claims for labor or materials; ” and the condition of the obligation was such that if the defendant would well and truly save, keep harmless and indemnify the mayor, aldermen and commonalty of the city of Mew York and their successors of and from the payment of all such claims so made and filed as aforesaid “ and shall well and truly pay all sum or sums that the said The Mayor, Aldermen and Commonalty of the City of Mew York may be compelled to pay by reason of the establishment and recovery of any such alleged claim or claims by any of said claimants or their legal representatives, and the costs, damages and expenses thereof, then this obligation to be void, otherwise to remain in full force and virtue.”

One of the claims or liens thus specified was finally adjudged good in an action to which both the plaintiff and defendant were parties; the plaintiff, was compelled to pay such claim or lien and actually did pay it; and the defendant has not paid to the plaintiff the sum of money that the plaintiff paid to satisfy such lien. This bond was dated the 26th of May, 1887.

As a defense the answer alleged that on the 19th of April, 1878, the predecessor of this defendant commenced an action against the mayor, aldermen and commonalty of the city of Mew York, one Winant, who was the claimant who succeeded and whose claim or lien the plaintiff paid, and others, for the purpose of having adjudicated, the claims of various persons including said Winant for moneys arising from a contract made between the city and one Gavin for the grading and paving of Lexington avenue; that upon the trial of the said action a judgment was awarded to the said Mechanics and Traders’ Bank against the mayor, aldermen and commonalty of the city of Mew York on the 15th of December, 1886, for a sum upwards of $29,000 ; that thereafter and on the 26th of May, 1887, the defendant in this action compromised and settled said judgment with the city and gave the bond referred to in the complaint, at that time objecting to the validity of the claims of Winant; that thereafter and upon a subsequent trial of the issues in the action raised by the answer of Winant, judgment was awarded and entered *756on the 25 th of June, 1894, in favor of "Winant and against the mayor, aldermen and commonalty of the city of New York for the sum of $5,117.47 damages and costs; that thereafter and within the proper legal time for that purpose, that is, on the 2d of August, 1894, the said bank, the defendant herein, duly appealed to the then General Term of this court from said judgment so rendered in the action to which it was a party, and a copy of said notice of appeal was filed and duly served upon all parties who appeared in that action, including the plaintiff herein; that thereafter a proposed case on appeal was duly served on behalf of the said bank upon all said parties, and subsequently and on or about the 15th óf October, 1894, amendments to said proposed case were served on behalf of said city of New York and also on behalf of said Win ant, and said case and amendments were noticed for settlement before the justice who tried the case and said appeal is still pending and undetermined ; that subsequently and on or about the 7th of November, 1894, the plaintiff, while said case and amendments were awaiting settlement, and said appeal to which the plaintiff, the city of New York, was a party and in which it had participated was pending, paid to said Winant under and in pursuance of. said judgment so appealed from by said bank the sum of upwards of $5,000, and that such payment was made without notice to or the knowledge, consent or acquiescence of this defendant. It was further alleged that pending the appeal the plaintiff gave notice of the payment to all the parties concerned,, including the justice before whom said case was pending for settlement and asserted that the appeal had become academic, and was without practical force or virtue.

Upon the trial the plaintiff rested and the defendant called its president and offered proof of conversation between him and the corporation counsel with reference to this claim of Win ant’s, and that subsequent to the giving of the bond the president had no relations with the city authorities in relation to this claim, and no demand was made on the bank for its repayment. This, evidence was excluded. The cashier of the defendant was then called and testified that Mr. Dean, an assistant corporation counsel, -conducted the negotiations which involved the settlement of this claim,, the payment of the defendant’s judgment and the giving of this bond on behalf of the city of New York. He was then asked whether there *757
      *were any*conversations regarding the right of the bank to appeal to the appellate court from any judgment that might be obtained against the city from any claims mentioned in the bond, and whether he stated to the assistant corporation counsel that the bank insisted upon the right to appeal to the Court of Appeals, if necessary, and whether the city of New York ever made "a demand upon the defendant for a payment on account of the Winant transaction. This was all objected to and excluded and the defendant excepted. This testimony was all immaterial and did not tend to establish a defense. The bond was an absolute obligation of the defendant to be void only in the event that the defendant paid any and all sum or sums that the mayor, aldermen and commonalty of the city of New York should be compelled to pay by reason of the establishment and recovery of any claim or claims by any of the said claimants or their legal representatives. One of such claimants recovered a judgment against the city which the defendant has not paid, and whether the bank insisted upon the right to appeal to the Court of Appeals or not was not material. The defendant then called an attorney at law who was associated with the defendant’s attorney in reference to this Winant claim. He was asked whether subsequent to that judgment he conducted an appeal therefrom on behalf of the defendant, which was objected to, whereupon counsel for the defendant stated that he desired to show that on the 2d of August, 1894, the Mechanics and Traders’ Bank took an appeal from the judgment to the General Term of this department, filed its notice of appeal in the county clerk’s office, and served copies thereof upon the attorney for Winant and the corporation counsel. Having made this offer, the defendant then offered a notice of appeal from the judgment filed August 2,1894, the case made, and the proposed amendments to the case, which' were admitted, and then offered to prove a conversation in relation to the appeal with Mr. Dean respecting an intention on his part to settle the Winant judgment, the protest by the defendant against such settlement, and the submission of the case and amendment fo the trial judge for settlement. He then further offered to show that the papers were returned by the trial judge, and the .conversation between the trial judge and the witness that, as the Winant claim had been paid, the appeal no longer existed, and a further conversation with Mr. Dean after the *758papers were returned from the trial judge. This testimony was excluded, and the defendant excepted. The defendant then rested, and the court directed a verdict for the amount of the bond and interest.

It seems to me that this testimony was all incompetent and'was properly excluded. There was nothing to prevent ‘ the defendant from prosecuting its appeal from the judgment establishing a lien in favor of Winant. The plaintiff was not an appellant. It was entirely immaterial to the defendant whether the city had paid the claim or not. If the defendant had succeeded in reversing the judgment establishing the validity of the Winant .claim,'it could not have been held upon its bond. If the city paid the claim pending an appeal, it did so at its own risk of having- the judgment reversed on the appeal by the defendant from the judgment establishing that claim. The defendant failed to prosecute its appeal, for what reason is entirely immaterial, and the failure to so prosecute the appeal or procure a reversal of the judgment made it liable upon its bond. Hothing that the city did or could do in this case could take away the right of the defendant to appeal from the judgment establishing the Winant claim, and if it had prosecuted that appeal successfully, it would be discharged from, any obligation on the bond to the city. The situation was that the defendant had received from the city the amount of money as belonging to it that the court subsequently .adjudged belonged to Winant. The defendant had appealed from the judgment in favor of Winant,-and was entitled to prosecute that appeal. If Winant’s claim or lien was not valid, and the judgment sustaining its validity had been reversed, there would have been no claim on behalf of the city in relation to this bond. But that judgment never has been reversed; it still stands in full force and effect,; and the city has paid it. The condition of the bond lias, therefore, been broken, and if the defendant has lost its right to have that judgment reversed, it is because it voluntarily abandoned its appeal.

The defendant relies upon the ease of *City of New York*v. *Baird*(176 N. Y. 269), but in that case the situation was entirely different. That was an action against the city of Hew York and Baird as jointly liable for injuries sustained by one Kelly in consequence of negligence in the performance of a contract by Baird with the city. While that action was pending the city paid to *759Baird the amount due on his contract, taking hack a bond with Baird as principal and a surety conditioned for the payment and satisfaction of any judgment which should be obtained in the action brought by Kelly against the city. The trial of that action resulted in a judgment against Baird and the city jointly, from which an appeal was taken by both Baird and the city. While that appeal was pending the city, against the protest of Baird, paid the judgment and thus abandoned its appeal, and the defense was that that payment to Kelly was made in bad faith, and in violation of Baird’s rights. It is perfectly apparent that in that case the payment by the city at once prevented Baird from prosecuting his appeal, for the judgment having been paid by one 'of those jointly liable for the tort, Baird had no opportunity of prosecuting the appeal and establishing his freedom from negligence. There the city was appealing. The abandonment of the appeal and the payment of the judgment prevented Baird from prosecuting his appeal, and this imposed upon Baird and his surety a liability upon the bond. In determining that question the court'said: “It would be strange indeed if as a result of such action the-city of New York could recover on the bond should the continuance of the appeal by Baird result in a reversal of the judgment without possibility of a recovery against him on a new trial. And on the other hand it would equally offend against justice to' deprive the municipality of the benefit of the wisdom of its officers should it happen that they were wise in concluding either that- the judgment would not be reversed, or, if reversed, that it would be for technical reasons, with the result that the subsequent verdict would be for an equal or greater amount.” And the judgment was reversed because it deprived the defendant of the opportunity of having the question of the good faith and fair dealing on behalf of the municipality passed upon. The whole decision of the court was based upon the fact that the city, by withdrawing its appeal and paying the judgment, had deprived the defendant in that case and his surety of the right to review without' taking the chance of loss should such review, and a subsequent trial had pursuant to it result favorably *to*the principal. It is apparent in this case that nothing that the city did deprived the defendánt of the right to prosecute its appeal and procuring a reversal of the judgment which *760established Winant’s claim. But the answer does not allege that the city acted in bad faith or that anything that the city did prevented the defendant’s appeal from the judgment establishing Winant’s claim, and in the absence of such a defense in the answer it certainly was not error for the court to exclude testimony which it was claimed would tend to establish it. Nor did the defendant make any such claim on the trial. The testimony was only to show that the city was not compelled to pay the. judgment in favor of Winant, because the defendant’s appeal was still pending and that the city had made no. demand upon the defendant for the amount that it had paid to Winant. Neither of these facts constituted a defense to the action, and in view of the fact that nothing that the city did or could do could take away the defendant’s right to review the judgment establishing Winant’s claim, and that the defendant has failed to allege that the settlement was made in bad faith, it seems to me the ruling of the court was clearly right.

For that reason the judgment appealed from should.be affirmed.

Laughlin, J., concurred.

Judgment and order reversed, new trial ordered, costs to appellant to abide event.