Opinion
May Term, 1898.
Present — Patterson, Rumsey, O'Brien and Ingraham, JJ.
Judgment affirmed, with costs, on opinion of Pryor, J., in court below.
The following is the opinion of Pryor, J.:
The position that because of the contractor's default in pleading the sureties may not question the amount of plaintiffs' claim is surely untenable. Had judgment been recovered against the property the sureties might have been concluded, for such is the condition of their covenant. ( Ringle v. O'Matthiessen, 39 N Y Supp. 92, 94; Thomas v. Hubbell, 15 N.Y. 405.) But the effort is to defeat such judgment, and sureties may avail of any defense that was open to their principal. (1 Wait Act. Def. 700.) They are not to be affected by the admission of the principal. (2 Whart. Ev. § 1212.) Upon a careful review of the evidence I am still of the opinion, intimated at the trial, that the plaintiffs have failed to establish the alleged oral agreement of October 1, 1891. I conclude further that the contractors did not delay the work, and so are not responsible for plaintiffs' increased expense in the hire of laborers. It results, therefore, that the amount of plaintiffs' claim in the notice of lien is enormously exaggerated, and that this was done intentionally, by pretense of a fictitious contract, for the purpose of enforcing a false and fabricated demand. Hence, the case is controlled by Goodrich v. Gillies (66 Hun, 422) with which nothing in Ringle v. Wallis Iron Works ( 149 N.Y. 439) is observed to conflict. Complaint dismissed on the merits, with costs.