Hauswald v. Katz — 222 A.D. 651

Majority

p. 651

First Department,

November, 1927.

Emil Hermann Hauswald, Doing Business under the Firm Name and Style of Durr & Hauswald, Respondent, v. Jacob Katz and Another, Appellants.

Headnote

Guaranty — complaint deemed amended to show date of written guaranty — since guaranty was made on same day as notes guaranteed were made, inference that extension of time was given which would furnish consideration.

Appeal from an order of the Supreme Court, made at the New York Special Term and entered in the New York county clerk’s office on February 11, 1927, denying defendants’ motion to dismiss complaint.

It conclusively appearing upon the argument of the appeal that the written agreement of the defendants in fact bore date June 15, 1924, but that through inadvertence the plaintiff, in setting forth a copy of said instrument in his complaint, omitted to include said date, the complaint should be deemed amended so as to insert the same. It appearing that the making by the Metro Flower Manufacturing Corporation of the three promissory notes in suit, along with others, and the giving of the written agreement of the defendants to pay said notes were concurrent acts, it is inferable that by virtue of said written promise of the defendants to pay said notes, as and when they fell due, an extension of time was granted the Metro corporation to pay its indebtedness to the plaintiff, and that, therefore, the defendants’ promise was upon sufficient consideration. The order appealed from should be affirmed, but without costs, and with leave to defendants to answer within twenty days from service of the order entered hereon with notice of entry thereof. Present — Dowling, P. J., Merrell, Martin, O’Malley and Proskauer, JJ. Order affirmed, without costs, with leave to defendants to answer within twenty days from service of order.