( Colgrove v. Tallman, 67 N.Y. 95.) There is, however, no proof that there was any demand upon plaintiff to sue Goldstone and if plaintiff knew of the assumption agreement it was not necessary for plaintiff to proceed against Goldstone first. ( Morrisey v. Berman, 94 N.Y.S. 596, dissenting opinion of GREENBAUM, J.; Phillips v. Schlang, 139 A.D. 930, revg. 67 Misc. 142, on the dissenting opinion of WHITNEY, J.) Present: CROPSEY, LAZANSKY and MacCRATE, JJ.
GERARD, J., concurs. SEABURY, J., concurs in the result on the authority of Phillips v. Schlang, 139 A.D. 930. Judgment reversed and new trial ordered, with costs to appellant to abide event.
It is well settled law that a principal and surety may be joined as defendants in the same action, unless the guaranty is one of collection. Phillips v. Schlang, 139 A.D. 930. The defendant had a right, in order to avoid circuity of action of multiplicity of suits, to demand as a condition precedent in the undertaking that the principal be made a party defendant, and this has not been done in this action.