Knobloch v. Zschwetzke — 14 N.Y. St. Rep. 853

Majority

p. 853

Philip Knobloch, App’lt, v. William Zschwetzke et al., Resp’ts.

(New York Superior Court, General Term,

Filed March 1, 1888.)

Headnote

1. Surety— When cannot recover amount paid prom principal.

If a surety pays in ignorance of the facts and of a good defense and acted negligently in so doing, it is a voluntary payment, and he cannot recover of his principal.

2. Same—When surety negligent in paying.

The plaintiff, who was surety for the payment of a bond secured by a -mortgage paid the sum sued for, to be released from the deficiency judgment obtained in an action to foreclose said mortgage. This payment was made after the debt as to his principal was discharged and without making the inquiry that it was his duty to make. Held, that he was negligent and could not recover.

Charles Dexheimer and Edward Whitney Hall, for app’lt; John P. Schmitt, for resp’ts.

The facts of the case will be found stated in the opinion of Chief Justice Sedgwick in Knobloch v. Zschwetzke (1 N. Y. State Rep., 238).

I concur in all that was then said by the learned chief justice. If anything, the plaintiff’s case is presented more strongly than it was then. The appellant does not seem to see the distinction between the case under consideration and those cited by him. In Morgan v. Smith ( 70 N. Y., 545 ), and Palmer v. Purdy (83 id., 144—149), there was an express reservation by the creditor of his rights and .remedies against the sureties, and the circumstances were such as permitted such a reservation. But in the present case the findings, supported by satisfactory evidence, show that the creditor’s claim was discharged.

The appellant claims that Bayliss on Sureties, 328, sustains his point that if a surety pays in ignorance of the facts and of a good defense, it is not voluntary, and he may recover of his principal.

If he will carefully read the authority he cites he will find that the proposition he advances is there said to be true only when the surety has acted without negligence.

In the case under consideration, the duty of making inquiry rested with the plaintiff, and, therefore, care and caution in acting as he did cannot properly be claimed to have been exercised. I have examined all the other authorities presented by the appellants, but consider them inapplicable to the case presented on this appeal. The judgment is affirmed, with costs.

Truax, J., concurs.