Opinion
February, 1930.
Appeal from Supreme Court, Kings County.
We are of opinion that the judgment entered in favor of the plaintiff here on the 22d day of August, 1927, against the American Magnestone Corporation, did not accrue upon the causes of action alleged in the complaint and was not entered in the due course of the proceedings in the action against the American Magnestone Corporation instituted by the plaintiff here, Benjamin G. Hitchings, Inc., on September 18, 1923, and, therefore, is not within the purview of the bond filed on the 15th day of October, 1923, in that action, pursuant to statute, for the purpose of discharging an attachment issued in that action against certain property of the defendant therein named. The causes of action sued upon in that action merged in a new agreement containing new and different reciprocal obligations on the part of the parties to that action, which obligations, in the absence of fraud or of proof that it was with the knowledge or consent of the defendant in this action, were prejudicial to the defendant as surety, as the surety could not have recovered over against the Magnestone Corporation within four months of bankruptcy and it was thereby discharged and released from any and all obligation under its undertaking. ( Moers v. Moers, 229 N.Y. 294; Morehouse v. Second Nat. Bank of Oswego, 98 id. 503; M.H. Metal Products Corporation v. April, 251 id. 146; Page v. Krekey, 137 id. 307; McNulty v. Hurd, 86 id 547; Montgomery v. Ottoman, 264 P. 283.) The judgment should be reversed upon the law and the facts, with costs, and judgment directed for the defendant dismissing the complaint upon the merits, with costs. Findings of fact and conclusions of law inconsistent herewith are reversed and new findings and conclusions will be made. Lazansky, P.J., Young, Kapper, Hagarty and Carswell. JJ. concur. Judgment reversed upon the law and the facts, with costs, and judgment directed for the defendant dismissing the complaint upon the merits, with costs. Findings of fact and conclusions of law inconsistent herewith are reversed and new findings and conclusions will be made. Settle order on notice.
See Civ. Prac. Act, § 953. — [REP.