Sturdevant v. Riley — 28 N.Y. St. Rep. 896

Majority

p. 896

Finney P. Sturdevant, Resp’t, v. Patrick Riley, App’lt.

(Supreme Court, General Term, Fifth Department,

Filed December 30, 1889.)

Headnote

Monet paid—Action will not lie to eecoyeb money paid fob nonPEBFOBMANCE OF GUABANTY MADE BY PLAINTIFF.

Plaintiff held a note of defendant which he transferred with a guaranty of payment to one H., who also sold it with guaranty to a hank. The bank recovered a judgment thereon, with costs, and defendant thereafter paid the amount of the note. Plaintiff and H. gave to the bank a note for the costs and for the expenses of supplementary proceedings, which is not yet due. Held, that plaintiff was not a surety for defendant, and could not recover for his half of said note as for money paid for defendant.

Appeal from a judgment of the county court of Steuben county, affirming the judgment of a justice’s court.

Eli Souk, for app’lt; A. M. Burrell, for resp’t.

The action was for money paid, laid out and ex-. pended by the plaintiff for the benefit of the defendant. The facts were that the plaintiff had taken the defendant’s note for a reaping machine which was to remain the property of the plaintiff till the note was paid. He had sold the note (with his interest in the machine) to one Hall and guaranteed its payment Hall had sold the note (with his interest in the machine) to a bank, and signed the same contract of guaranty. The note not being paid at maturity the bank sued the plaintiff and Hall on their guaranty and recovered judgment for the amount of the note, with $28.74 costs. The defendant afterwards paid to the bank the amount of his note with interest, but refused to pay the costs in the judgment against the plaintiff and Hall. The bank thereupon instituted proceedings supplementary to execution against the plaintiff and Hall to collect the balance of its judgment against them, and, when the expenses of such proceedings had ¿mounted to about thirty-five dollars, took the joint note of the two defendants in the

p. 897

execution for $59.40 and discharged the judgment against them. That note was unpaid and not yet due when this action was commenced. The recovery in this action was for one-half of that note.

There are several reasons why that recovery cannot be sustained. The plaintiff was neither surety nor endorser for the defendant’s accommodation. The guaranty .was his own contract, and for his own benefit. He could not cnarge the defendant with the costs incurred by him by non-performance of his contract; still less with the expenses of supplementary proceedings occasioned by his resistance of payment of the judgment recovered against him. Section 1916 of the Code of Civil Procedure does not give a right of action against the defendant, because the plaintiff was not surety for him; nor does it appear that the costs and expenses in question were incurred by the plaintiff necessarily and in good faith.

Moreover, the plaintiff has not yet paid any money on the judgment, nor is it certain that he will. He has given a note jointly with Hall for the costs of the action and the expenses of supplementary proceedings against them. If Hall should ¡be compelled to pay that note, he would have a right of action over for the whole amount against the defendant, if any such right of action existed in favor of anybody.

Some evidence was received, under objection of the defendant, to the effect that the latter promised the plaintiff orally from time to time to pay the note. But this promise did not affect the rights or the obligations of either party; it was only a repetition of the promise contained in the note itself, and did not authorize the plaintiff to make costs against the defendant by resisting the performance of his own obligation.

The judgment of the county court and that of the justice should be reversed.

So ordered, with costs.

Barker, P. J., and Macomber, J., concur.