Hyperlawhypertext legal database Nadler v. A. Epstein Novelty Co. 149 N.Y.S. 934

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Nadler v. A. Epstein Novelty Co.

149 N.Y.S. 934 Court Argued October term, 1914, before SEABURY, BIJUR, and COHALAN, JJ. Decision date 1914-11-19 English

Delivered by SEABURY, J.

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p. 934
NADLER et al. v. A. EPSTEIN NOVELTY CO. et al.
(Supreme Court, Appellate Term, First Department.
November 19, 1914.)

Headnote

Guaranty (§ 30[1] ) — Execution—Personal Liability.
Where a written guaranty, providing that E. Novelty Co. guaranteed payment of bills for merchandise delivered to T., was signed “A. Epstein,” the signer was liable individually on the guaranty, though the company was not.
[Ed. Note. — For other cases, see Guaranty, Cent. Dig. §§ 30-32; Dec. Dig. § 30.*]
Appeal from Municipal Court, Borough of Manhattan, Sixth District.
Action by Max Nadler and another, doing business as Nadler Sr Rebhun, against the A. Epstein Novelty Company and Albert Epstein. Erom a Municipal Court order in favor of defendants, plaintiffs appeal. Reversed as to Albert Epstein individually, and judgment rendered against him.
Argued October term, 1914, before SEABURY, BIJUR, and COHALAN, JJ.
Edward P. Sobel, of New York City, for appellants.
Horace London, of New York City, for respondents.

The plaintiffs appeal from so much of the judgment entered below as awards judgment in favor of the defendant Albert Epstein. The action is upon a written agreement of guarantee. The agreement provides that “the Epstein Novelty Company guarantees the payment of bills for merchandise delivered to Max Teller,” and is signed, “A. Epstein.”

It was proved upon the trial that upon the strength of defendant’s signature to the guaranty the plaintiffs sold goods to Teller of the reasonable value of $43.18. Nowithstanding that the agreement reads, “The A. Epstein Novelty Company guarantees,” etc.; the fact that the defendant signed the agreement individually renders him liable for the obligation incurred under the agreement. Electric Carriage Co. v. Herman, 67 Misc. Rep. 394 , 123 N. Y. Supp. 231 .

The court below properly dismissed the complaint as to the A. Epstein Novelty Company, because that company never signed the agreement of guaranty. The court erred, however, in dismissing the complaint against A. Epstein individually.

The defendant Epstein not having proved any defense to the claim upon which he is sued, the judgment is reversed, with costs, and judgment is awarded for the plaintiffs for $43.18, with interest from December 19, 1913, together with the appropriate costs in the court below. All concur.

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