Fischer v. Mahland. No. 1

Full title: RUDOLPH FISCHER, Appellant, v . GEORGE H. MAHLAND, Respondent. (Action No…

Court: Appellate Division of the Supreme Court of New York, Second Department

Date published: Mar 26, 1920

191 App. Div. 209 (N.Y. App. Div. 1920)

181 N.Y.S. 179

Opinion

March 26, 1920.

Eugene Cohen, for the appellant.

William Pinkney Hamilton, Jr., for the respondent.

PUTNAM, J.:

This demurrer calls on us to pass on the legal effect of the paper in suit. Its terms, especially the signer's joint and several liability in conjunction with the brewing company, so plainly assumed, make the obligation original and direct as of a party to the primary undertaking. Hence it is not strictly a guaranty which must be collateral, secondary and subsidiary to another's obligation. But though defendant took on himself the place of a co-obliger, still he may be a surety. The foundation of this liability is advances to and for account of the brewing company, which as beneficiary of such a mercantile agreement is the principal debtor. As on the face of the paper defendant is securing advances to be made to another, we cannot at this stage of the cause overrule defenses available to one thus known to, and accepted by, plaintiff's assignor, as a surety.

Hence the defenses numbered 1, 2, 3 and 6 are not insufficient in law on the face thereof. The 4th, however, charging the creditor merely with indulgence and laches, is bad. ( Wilson v. Whitmore, 92 Hun, 466; sub nom. Wilson v. Webber, 157 N.Y. 693. ) Because the 5th, raising a defense of repayment, does not show that all moneys the repayment of which this defendant guaranteed are those sued for, it must also be held insufficient.

Hence the order appealed from should be affirmed as to the demurrer to the defenses numbered 1, 2, 3 and 6, but reversed and demurrer sustained as to the 4th and 5th defenses, with leave within twenty days to amend the answer. As so modified, the order should be affirmed, but without costs of this appeal to either party.

MILLS, RICH, BLACKMAR and JAYCOX, JJ., concur.

Order affirmed as to the demurrer to the defenses numbered 1, 2, 3 and 6, but reversed and demurrer sustained as to the 4th and 5th defenses, with leave within twenty days to amend the answer. As so modified the order is affirmed, without costs of this appeal to either party.