Stein v. Whitman

Hotchkiss, J.: The complaint alleges that the defendant Whitman made his bond under seal payable to defendant Fauncé, which bond provided that the whole amount should, at Faunae’s option, become due on default of any installment of interest; "that ■ FaunCe assigned the bond to plaintiff, guaranteeing payment thereof according to its tenor;' that default had been made' in a semi-annual installment of interest, and plaintiff elected to have the whole amount due, wherefore, he demands judgment against both defendants. The demurrer is upon the ground that the defendants are not severally liable upon the same instrument. The allegation is that appellant guaranteed payment of the debt expressed by the bond. Strictly, appellant’s obligation was in the nature of that of a surety rather than that of a guarantor. As such he became primarily liable for the original debt (Loos v. McCormack, 107 App. Div. 8), and respondent at his election could proceed against Whitman and appellant simultaneously. If, therefore, appellant'became, as to respondent, a principal debtor under the bond, he and Whitman were liable upon the same instrument and could be joined as defendants. (Oode Civ. Proc. § 454.) In Roehr v. Liebmann (9 App. Div. 247) and kindred cases it was held that the contract of the principal debtor and that of the. guarantor arose out of distinct and independent contracts and not upon the same instrument! I apprehend that a sound distinction between the above cases and the present lies in the essential difference between the. liability of a surety and that of a guarantor, the liability of the former being original and that of the latter being collateral or, as it is sometimes expressed, the liability of a surety is to pay if the principal does not, while that of a guarantor is to pay if the principal cannot. In other words, the distinction goes to the root of "the difference between an obligation to pay and one for collection. The order should be affirmed, with costs. Ingraham, P. J., and McLaughlin, J., concurred; Laughlin and Dowling, JJ., dissented.