Donaldson v. Neiglinger — 19 N.Y. St. Rep. 113

Majority

p. 113

Helen S. Donaldson, Appl’t, v. William Neiglinger, Resp’t.

(City Court of New York, General Term,

Filed November 30, 1888.)

Headnote

1. Landlord and tenant—Surety bob bent.

Where nothing to the contrary is shown, it is presumed that the landlord agreed to let the premises in consideration of the promise of the surety. The date of the instrument by which the rent is guaranteed, is not material, if the lease was granted upon the faith and credit of the guaranteed

2. Same—When surety becomes liable—Tenant must seek out landlord.

Default in payment occurs when the day has passed upon which the rent should have been paid in accordance with the terms of the lease, and the tenant fails to pay. It is the tenant’s duty to seek out the landlord and pay the rent.

8. Same—When bight op action accrues.

The right of action accrues immediately upon the non-payment of the rent in favor of the landlord against the surety. Neither proof of demand or notice of the tenant’s default to the surety is necessary to maintain it.

Appeal from a judgment rendered upon dismissal of the complaint, upon the trial.

Barlow & Carman, for appl’t; Rollin Tracey, for resp’t.

Action to recover one month’s rent against surety upon a lease.

It was admitted upon the trial that the tenant was in occupation of the premises in February, 1887, the month for which rent is claimed, That the rent was not paid by the tenant, and was demanded from the defendant before action brought. He refused to pay. The guarantee bears date two days prior to the date of the lease, and expresses to be in consideration of the letting described in the lease.

When the plaintiff rested, the defendant moved to dismiss the complaint upon two grounds.

First. That there was no endeavor on the part of the plaintiff to collect the rent from the tenant.

Second. That the guarantee created no liability against him because the guarantee was executed two days before the lease.

The learned justice granted the motion upon the ground that the surety cannot be made liable until default be made.

The grounds stated by the judge involves both propositions .of the defendant’s counsel, neither of which are tenabie.

Where nothing to the contrary is shown it is presumed that the landlord agréed to let the premises in consideration of the promise of the surety. The date of the instrument is not material if the lease was granted upon the faith and

p. 114

credit of the guarantee. There was nothing to the contrary shown in this case. See Speyers v. Lambert, 1 Sweeny, 335 ; Gottsberger v, Radway, 2 Hilt, 342.

A default in payment occurred when the day passed upon which the rent should have been paid in accordance with the terms of the case, and the tenant fails to pay. It was the tenant’s duty to seek the landlord and pay the rent. Mann v. Eckford, 15 Wend., 502 .

A right of action accrued immediately in favor of the landlord against the surety. Neither proof of demand or notice of the tenant’s default to the surety was necessary to maintain it. Cordier v. Thompson, 8 Daly, 172 .

To dismiss the complaint was error.

The judgment will be reversed, a new trial ordered, with costs to abide the event.

McAdam, Ch. J., and Ehrlich, J., concur.