Opinion
November 18, 1942.
Present — Cunningham, Taylor, Dowling, Harris and McCurn, JJ.
Judgment modified on the law in accordance with the memorandum and as modified affirmed, with costs of this appeal to the respondent. Memorandum: We think that the complaint should have been dismissed for failure to state a cause of action. The note and the agreement of guaranty were executed and delivered simultaneously and constituted but one instrument and they should be construed together and an action should have been brought on both instruments. (See Federal Credit Bureau, Inc., v. Zelkor Dining Car Corp., 238 App. Div. 379; Manufacturers Trust Co. v. Steinhardt, 265 N.Y. 145; Colonial Discount Company, Inc., v. Rumens, 249 App. Div. 736; affd., 274 N.Y. 612; Rogers v. Smith, 47 N.Y. 324.) The judgment should be modified by striking out the words "on the merits" and by substituting in place thereof the words "for failure to state a cause of action but without prejudice to the right of the plaintiff to bring a new action on the agreement and the note." All concur. (The judgment dismisses the complaint in an action on a promissory note.)