Opinion
July 8, 1908.
Henry Thompson, for the appellant.
John S. Davenport, for the respondent.
The complaint charges that in August, 1885, the defendant conveyed certain real estate to the plaintiff by full covenant warranty deed; that plaintiff, in February, 1889, by a similar deed, conveyed the same premises to one Alexander Lyle; that Lyle, in March, 1890, conveyed the same to his wife, who died in January, 1905, and by her will devised the same to her husband as trustee; that at the time of the making and delivery of the first deed mentioned the premises were subject to an inchoate right of dower of Harriet L. Bostwick, the defendant's wife; that in 1904, Mrs. Lyle notified her grantor, this plaintiff, of the fact that Mrs. Bostwick had an inchoate right of dower in the land referred to and demanded that he procure its extinguishment, which he neglected to do, and thereupon Lyle, in April, 1905, did so at an expense of $1,125, and in October following brought an action against Morette to recover the amount thus paid, with interest; that Morette interposed an answer which put in issue the allegations of the complaint and on December 13, 1906, gave the defendant in this action notice of the pendency of that action and requested him to defend the same; that he did not defend and on the 17th of December, 1906, judgment was rendered against Morette for such amount, with interest, which he paid, and he then commenced this action to recover the same from the defendant.
The answer admitted the execution and delivery of the deed of conveyance by the defendant, the receipt of a notice at the time alleged requiring him to defend the action brought by Lyle and that he did not do so, and denied the other material allegations of the complaint. It then set up certain facts to the effect that Mrs. Bostwick did not have an inchoate right of dower in the lands referred to at the time of the conveyance by the defendant to the plaintiff, or at the time of the payment alleged to have been made to her.
At the trial the plaintiff introduced in evidence the judgment recovered by Lyle against him and this the trial court held was "conclusive as against the defendant in this action," and accordingly directed judgment in favor of the plaintiff for the amount claimed ( 56 Misc. Rep. 140). The conclusion thus reached was based upon the authority of Village of Port Jervis v. First Nat. Bank ( 96 N.Y. 550); Cornell v. Travelers' Ins. Co. (175 id. 239); Olmstead v. Rawson (188 id. 517) and other authorities.
There is no doubt about the general rule that where one party is obligated to indemnify another against some liability, if the party indemnified gives notice to the indemnitor of the commencement of an action against him to enforce such liability, and gives him a reasonable opportunity to defend the same, then the indemnitor is concluded by the recovery of a judgment against the party indemnified. In order to make this rule applicable, however, notice of the commencement of the action must not only be given but it must be given at such a time that the party receiving it has "a reasonable opportunity" to defend. This means that he must be given an opportunity not only to participate in but also to shape the issues and prepare for trial. This is the purpose of the notice. It need not be in any particular form or in writing, but must be such as to fully and fairly inform the party of the claim and that an action has been commenced for its enforcement. If he then neglects and refuses to make any defense the judgment will bind him as fully as though he were a formal party to the action. Whether sufficient notice has been given is not governed by any fixed or arbitrary rule, but depends upon the facts and circumstances of each case. ( Oceanic Steam Navigation Co., Ltd. v. Campania Transatlantica Espanola, 144 N.Y. 663.) Here, the notice was not given until December 13, 1906, and it was to the effect that the action would be tried on the following day. This was not a sufficient notice. It accomplished no purpose whatever, because it did not afford the defendant "a reasonable opportunity" to defend, and for that reason he was justified in paying no attention to it. The judgment which was then taken against this plaintiff was not conclusive on this defendant. It furnished at most only presumptive evidence of defendant's liability and, therefore, any defense which he could have originally made had he been a party to the action brought by Lyle against the plaintiff was available in this action. He had a right to show that that judgment was not founded upon any legal liability; in other words, that Mrs. Bostwick at the time the money was paid to her did not have an inchoate right of dower in the premises referred to in the complaint. He had a right to contest that question upon the merits. This was denied him at the trial and for that reason the judgment must be reversed.
The judgment appealed from is reversed and a new trial ordered, with costs to appellant to abide event.
INGRAHAM, CLARKE, HOUGHTON and SCOTT, JJ., concurred.
Judgment reversed, new trial ordered, costs to appellant to abide event.