Opinion
283 A.D. 921 130 N.Y.S.2d 313 HAROCO COMPANY, INC., Respondent, v. NATIONAL SURETY CORPORATION, Appellant. Supreme Court of New York, First Department. May 11, 1954
Appeal (1) from an order of the Supreme Court at Special Term, entered September 15, 1953, in New York County, which granted a motion by plaintiff for summary judgment striking out the answer, under rule 113 of the Rules of Civil Practice, and (2) from the judgment in favor of plaintiff in the amount of $10,232.35, entered thereon.
Per Curiam.
In the absence of a showing of fraud or collusion the compensated surety is liable for the judgment recovered in the action in accordance with the terms of its bond. However, the judgment is 'only prima facie evidence against the surety' (Brescia Constr. Co. v. Walart Constr. Co., 245 A.D. 105, 108). It appears from the record that $500 of the amount of the judgment recovered does not stem from a liability owed by the principal to the plaintiff, but on the contrary relates to a liability to the codefendant in the action in which the undertaking was filed. Accordingly, the judgment should be modified by reducing it to the sum of $9,500, with leave to the codefendant in said action to apply for such relief as he may be advised, without costs to either side.
Dore, J. P., Callahan, Breitel, Bastow and Botein, JJ., concur.
Judgment unanimously modified in accordance with the opinion herein and, as so modified, affirmed, without costs to either side. Settle order on notice.