ANNA DUNFEE and JOHN J. CUMMINS, as Executors, etc., of JOHN DUNFEE, Deceased, Respondents,
JOSEPH DUNFEE, Defendant, Impleaded with EMPIRE STATE SURETY COMPANY, Appellant.
APPEAL by the defendant, the Empire State Surety Company, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Onondaga on the 26th day of October, 1910, upon the verdict of a jury; also from an order entered in said clerk's office on the 25th day of October, 1910, denying the said defendant's motion for a new trial made upon the minutes; also from an order entered on the 13th day of October, 1910, modifying an order theretofore made for the examination before trial of the plaintiffs and codefendant, and also from two orders entered on the 18th day of October, 1910, one denying the said defendant's
motion for an order to examine the defendant Joseph Dunfee before trial, and the other denying a motion for an adjournment or postponement of the trial.
The action is on a bond executed by the defendant Joseph Dunfee, as principal, and the appellant, a surety company, as surety. The answer of the surety company, after denials, alleges as an affirmative defense that the giving of the bond in suit was procured by means of the fraud and conspiracy of the plaintiffs and the defendant Joseph Dunfee, who has not answered in the action.
Benjamin Reass and Hugo Hirsh, for the appellant.
John W. Hogan, for the respondents.
In September, 1904, the Central New York Telephone and Telegraph Company entered into a written agreement with John Dunfee, of Syracuse, the testator of the plaintiffs, whereby he agreed 'to build a system of underground conduits and manholes in the streets of the city of Syracuse' according to the specifications which formed a part of the agreement. The contractor agreed to furnish the tools, machinery, etc., essential to the prosecution of the work, 'and to guard and protect the trench and all excavations at all times against accidents, and be responsible for any accidents or injury which may occur.'
During the progress of the work and on the 24th of September, 1904, one Florence Ryan fell in an unguarded trench or excavation made at the intersection of Montgomery and Jefferson streets in said city by said contractor, and was seriously injured. On October fifth following she commenced an action against both parties to said agreement to recover damages for the injuries sustained by her. Dunfee died December twenty-fourth, and at that time the agreement was substantially performed. He left a last will and testament which was duly admitted to probate, and letters testamentary issued thereon to the plaintiffs in January, 1905, by the surrogate of the county of Onondaga. The telephone company early in April served upon the plaintiffs a notice of the pendency of said action commenced by Florence Ryan, calling attention to the clause mentioned in
the agreement with Dunfee and requesting the executors to defend such action, and a notice of claim was also presented by said company to said executors, accompanied by a copy of the summons and complaint in said action. The plaintiff in that action recovered a verdict of $20,000, which was reduced to $15,000, and judgment entered for $15,501.76 on the 9th of June, 1906. The judgment was finally affirmed by the Court of Appeals on March 16, 1909 (See Ryan v. Central N.Y. Tel. & Tel. Co., 195 N.Y. 508), and was paid by the telephone company. On April 29, 1909, the telephone company commenced an action against the plaintiffs and recovered judgment for $19,993.81 and an execution was duly issued thereon, and the plaintiffs paid in satisfaction thereof the sum of $20,810.88. The defendants here had adequate and reasonable notice of the nature and pendency of said action and were requested and demanded to defend the same.
John Dunfee was a man of affairs engaged extensively in the performance of work requiring earth excavation. He had several independent deposit accounts in the State Bank of Syracuse. His account in connection with the performance of the agreement with the telephone company was kept by itself as that of 'John Dunfee & Co., Subway,' although he had no partner in the enterprise. On the 20th of December, 1904, he was paid on account of said contract $23,006.35, which was deposited to the credit of said account, making the same $25,558.13; and after his death the account was kept intact until May 29, 1906.
The defendant Joseph Dunfee, a nephew of John, had taken charge to some extent at least of the contract work referred to, and claimed he was entitled to the profits of the business and frequently demanded of the executors the payment over of the money in the 'John Dunfee & Co., Subway,' account on the ground that it belonged to him.
The depositions of the two executors were taken before trial in pursuance of an order of the justice sitting at the Trial Term granted upon the application of the surety company and were read upon the trial in its behalf. Mrs. Dunfee, the widow and executrix, in response to the ...